Volume 297 — Federal Reporter

Court of the United States for the District of Oregon; Charles E. Wolverton, Judge. Suit in equity by William S. Overlin against the Dallas Machine & Locomotive Works to enjoin infringement of plaintiff’s patent and for an accounting. From a decree for defendant, plaintiff appeals.

Bledsoe, Judge. Suit by the San Diego Co-operative Association against G. W. Brainard, trustee in bankruptcy of the Pacific Co-operative Ueague Stores, Inc., bankrupt. From a decree for plaintiff, defendant appeals.

<p>In Error to the District Court of the United States for the Western District of Missouri; Arba S. Van Valkenburgh, Judge.</p> <p>Blyford B. Jackson was convicted under 19 separate counts of violating the Harrison Act, as amended, and he brings error.</p>

<p>1. Appeal and error @=>1012(1) — Trial court’s conclusions on facts accepted unless evidence preponderates to contrary.</p> <p>The trial court’s conclusion upon the facts must be accepted by the Appellate Court unless the evidence , decidedly preponderates to the coni trary.</p> <p>2. Evidence @=408(1), 411 — Parol evidence held admissible to explain writing on theory that it was receipt or incomplete contract.'</p> <p>In a suit for an accounting involving the issue of whether plaintiff and defendants entered into a joint adventure to purchase land contracts with money contributed by them, or the plaintiff merely paid the defendants a certain sum of money and authorized them to buy contracts for her therewith, parol testimony as to the actual arrangement between them was admissible notwithstanding writing stating that defendants had received certain sum from plaintiff for the purchase of contracts, and that plaintiff was to receive “first money that matures as she wishes to make a mortgage on her house and others.” since such writing, if a receipt, was open to explanation, and, if a contract, was so incomplete as to admit evidence of surrounding and explanatory circumstances.</p> <p>3. Joint adventures @=>l— Evidence held to sustain finding as to existence of joint adventure.</p> <p>In a suit for an accounting involving the issue of whether the plaintiffs and the defendants entered into a joint adventure to purchase land contracts with money contributed by them or the plaintiff merely paid the defendants a certain sum of money and authorized them to buy contracts for her therewith, evidence held to sustain trial court’s finding that the transaction was a joint adventure.</p> <p>4. Appeal and error @=>994(3) — Credibility of witnesses for trial court. The credibility of witnesses was for the trial court.</p> <p>5. Joint adventures @=>l — Transaction held a “joint adventure.”</p> <p>Where four persons contributed certain sums of money toward a fund for the purchase of land contracts under a contract providing for a division of the profits in proportion to the respective capital contributions, and entitling named person to the benefit of the first maturity to enable her to procure a loan on certain property, the transaction was a “joint adventure” (citing Words and Phrases, Hirst and Second Series, “Joint Adventure”).</p> <p>6. Triai @=>11(3) — Transfer from equity to law docket held properly refused.</p> <p>A suit for an accounting of profits and for special damages resulting from an investment of a certain sum made by plaintiff under an agreement with defendants for the purchase of land contracts was a suit in equity, and plaintiff’s application for transfer to the law side of the court with a demand for a jury trial was properly refused.</p> <p>7. Equity @=>392 — Rehearing properly denied where term at which decree rendered expired.</p> <p>A petition for rehearing filed in the District Court by leave of the Circuit Court of Appeals was properly denied when th.e term at which the decree was rendered expired before the appeal therefrom was taken.</p> <p>8. Equity @=>455 — Leave to file bill of review in discretion of court.</p> <p>Leave to file a bill of review is not a matter of right, but is within the sound discretion of the court to which the application is made.</p> <p>3. Equity @=447(2) — Character of newly discovered evidence to warrant leave to filo bill of review stated.</p> <p>•Newly discovered evidence, to warrant court in granting leave to file a bill of review, must be controlling, not merely cumulative.</p> <p><g=»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>10. Equity <®=»456 — Leave to file bill of review may be denied if court deems it (inadvisable.</p> <p>An application íot leave to file a bill of review may be refused although the facts, if admitted, would change the decree, when the court, looking to all the circumstances, deems it productive of mischief to innocent parties, or for any other cause unadvisable.</p> <p>*a=jFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes-</p>

<p>1. Criminal law <§=827 — Defendant should present specific instruction requested*</p> <p>Where defendant desires an instruction on a certain question, he should present the special instruction requested, and not merely orally request the court to instruct the jury on that question.</p> <p>2. Criminal law <§=510, 780(1) — Failure to give cautionary instruction on accomplice’s testimony not reversible error; conviction may rest on accomplice testimony.</p> <p>While it is the better practice to give an instruction cautioning the jury against too much reliance on an accomplice’s testimony, the failure to give such an instruction is not reversible error, and there is no absolute rule preventing conviction on such testimony.</p> <p>3. Receiving stolen goods <§=l — Possession with guilty knowledge crime under federal act.</p> <p>A claim that under Act Feb. 1913, § 1 (Comp. St. § 8603), a charge of unlawful possession of stolen goods, knowing them to have been stolen, states no offense, unless it also alleges that at the time defendant received the goods he knew that they had been stolen, held without merit, as this act expressly penalizes either the receiving or the having in possession of such goods with guilty knowledge.</p> <p>4. Criminal law <§= 1129(2)- — Errors not assigned according to ruie requiring setting out of instructions disregarded.</p> <p>Errors not assigned according to Circuit Court of Appeals Rules, rule 11, requiring the assignment of error to set out totidem verbis the instructions given or refused, may be disregarded.</p> <p>5. Receiving stolen goods <§=4 — Refusal of instructions as to possession of goods held not error.</p> <p>The refusal of requested instructions, predicated on the theory that the charge in the indictment that defendant had possession of certain goods was not proved, if another person had the legal possession of them, even if defendant was present, aiding and abetting that person in the unlawful possession, was not error.</p> <p>6. Criminal law <§=59(5) — Indictment and information <§=83 — At common law ■ one aiding and abetting commission of felony was accessory or principal in second degree.</p> <p>By the common law one who was present, aiding and abetting the commission of a felony, was deemed an accessory at the fact or principal in the second degree, and generally, when the punishment was the same, he could he indicted, at pleader’s option, either as principal in the first degree, by direct allegation that he committed the felony, or according to the fact, by alleging that he aided and abetted' the commission of the felony.</p> <p>7. Indictment and information <§=84 — Accessory may he charged directly with commission of crime.</p> <p>Under Criminal Code, § 332 (Comp. St. § 10506), providing that whoever aids, abets, or procures the commission of an act, constituting an offense defined in any law of the United States; is a principal, an accessory either at or before the fact may, at pleader’s option, be charged directly with the commission of the crime, and such an indictment is supported by evidence that defendant aided and abetted its commission.</p> <p>8. Criminal law <®=811 (I) — Federal judge "may comment on portions of evidence. Where a federal District Judge called attention- in his charge to some - portions of the evidence; hut left the jury.free to form their-own conelusions, held, that the comments were within his right to aid the jury in reaching a correct conclusion on the facts.</p> <p><@=»For other eases see same topic & KEY-NUMBER in'all'Key-Numbered Digests & Indexes,</p>

<p>Appeal from the District Court of the United States for the District of New Jersey; Charles F. Dynch, Judge.</p> <p>Suit in equity by the City of Newark and others against the Central Railroad Company of New Jersey and another. From a decree dismissing the bill, complainants appeal.</p>

<p>In Error to the District Court of the United States for the Northern District of Alabama; William I. Grubb, Judge.</p> <p>Action at law by the National Bank of Commerce of Seattle against T. W. Pratt and others. Judgment for plaintiff, and defendants bring error.</p>

^ Action by the United States against the New York & Cuba Mail Steamship Company to recover, damages and medical expenses of a seaman. Judgment for plaintiff, and defendant brings error.

Suit in equity by the Ball & Roller Bearing Company against the F. C. Sanford Manufacturing Company. Decree for defendant (280 Fed. 415) was affirmed on rehearing (291 Fed. 442), and plaintiff appeals.

Bledsoe, Judge. Application for habeas corpus by Yoshimasa Nomura against the United States. . From a judgment dismissing the writ, and remanding relator for deportation,, relator appeals.

<p>Receivers <@=>142 — Doctrine of caveat e(nptor applies to sales by receivers. '</p> <p>When bids were solicited by a receiver for property of the estate, on terms expressly stating that he sold only such goods as were in his possession and without warranty, and bidders were given an opportunity for inspection, after the sale was made and duly confirmed by the court, it was . without power to require the receiver to refund a part of the purchase money on a claim by the purchaser that an inventory, which was made by defendant before the receivership, contained errors, and that he did not receive all the goods or value shown thereby.</p> <p><gs»Por other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Joseph Barinelli and another were convicted of violating the National Prohibition Act, and the named defendant brings error.

<p>In Error to" the District Court of the United States for the Northern Division of the Western District of Washington; Jeremiah Neterer, Judge.</p> <p>Chester 'C. Winkler was convicted of possessing intoxicating liquor, in violation of the National Prohibition Act, and he brings error.</p>

<p>In Error to the District Court of the United States for the Southern Division of the Southern District of California; Benjamin E. Bledsoe, Judge.</p> <p>R. H. Clements and others were convicted of conspiracy to obstruct the of the mails and interfere with interstate commerce, and error.</p>

<p>Bills and notes @=>334 — Holder in due course, though possessing payee’s funds, may recover from maker, though there is failure of consideration.</p> <p>‘ Where a bank was a bon¿ fide purchaser of a note before maturity, that after the bank had learned of a failure of consideration between payee and maker, and after maturity of the note, bank had funds of payee on deposit, and failed to protect itself with them, will not prevent the hank from recovering from maker.</p> <p><g=s>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>At Law. Action by the Pennsylvania Railroad Company against</p> <p>the Chesapeake & Ohio Coal & Coke Company. On motion.</p>

<p>1. Collision <©=95 (2) — Ferryboat held in fault for collision with a crossing steamship.</p> <p>A tug, towing a lighter as a ferryboat, which, on the approach of a steamer on her starboard side on a grossing course, signaled her desire to cross ahead and without receiving any answer continued her course and speed until too late to avoid collision, held chargeable with gross fault.</p> <p>2. Collision <©=76 — Signal agreement alone can justify departure from navigation rules.</p> <p>e To justify otó vessel in a departure from the navigation rules, the positive assent of the other vessel by signal agreement is always necessary.</p> <p>3. Collision <©=77 — Failure to keep careful lookout held not contributing cause of collision.</p> <p>Failure of a steamship to keep a careful lookout, or to hear and answer signals from a vessel on a crossing course, held not a contributing eause to a collision between them, where she was the privileged vessel and required by the rules, in the absence of agreement to the contrary, to keep her course and speed, which she did.</p> <p>4. Collision <©=>76 — Cross-signai in answer to one proposing a departure from the rules held not violation of pilot rule.</p> <p>A harbor pilot rule forbidding the giving of cross-signals applies only where the vessel giving the first signal indicates a course or maneuver authorized or required by the navigation rules, and is not violated by a cross-signal where the first signal proposes a departure from the rules.</p> <p>5. Collision <©=38 — Nature of duty of privileged of crossing vessels to maintain her course and speed, stated.</p> <p>The duty of the privileged of two crossing vessels to keep her course and speed is as definite and precise as the duty of the burdened vessel to keep cut of the way.</p> <p>6. Collision <©=38 — Privileged vessel not required to abandon maneuver to permit other vessel to cross ahead.</p> <p>Where the privileged of two crossing vessels was moving under a port helm, she -was under no obligation to abandon the maneuver and take a straight course to permit the other vessel to cross ahead.</p> <p>7. Collision <©=39 — Failure of privileged vessel to maintain speed held fault contributing to collision.</p> <p>Failure of the privileged of two crossing vessels to maintain her speed held not justified by the situation, hut to constitute a fault contributing to collision between them.</p> <p>8. Collision <©=123 — Burden rests on vessel violating rule to show that faulf did not contribute to collision.</p> <p>Violation of a statutory rule is such a fault as to throw upon the offending vessel the burden of proving, not merely that it might not have been one of tbe causes of collision, or that it probably was not, but that it could not have been.</p> <p><g=>For other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Equity. Suit by the United States against George Boynton and others. On petition by Robert M. Allan and others for leave to intervene as defendants and cross-complainants.</p>

<p>In Equity. Suit by the Ambler Realty Company against the Village of Euclid, Ohio, and Harry W. Stein, Inspector of Buildings.</p>

<p>1. Internal revenue <@=9 — Commission produce merchant is “broker,” under Revenue Act of 1918.</p> <p>Under Revenue Act 1918, § 1001, subd. 1 (Comp. St. Ann. Supp. 1919, § 5980o), imposing a special tax on brokers, and providing that “every person whose business it is to negotiate * * * sales of * * * produce or merchandise for others shall he regarded as a broker,” one who receives farm produce for sale on commission, advances the charges thereon, sells it in his own name, and remits the proceeds, less charges and commission, is a “broker,” and subject to the tax.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Broker.]</p> <p>2. Statutes <@=179 — Statutory definition of words governs.</p> <p>Where Congress expressly defines words in a statute, that definition must govern the courts in applying the statute.</p> <p>3. Statutes <@=225% — Re-enaetment after administrative construction adopts such construction.</p> <p>Re-enaetment of a provision of a revenue statute, after a construction has been placed thereon by the Treasury Department, is an approval of such construction.</p> <p><g^»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Suit by Uloyd W. Seaman against Frank K. Bowers, individually and as United States Collector of Internal Revenue for the Second District of New York. From a decree denying plaintiff’s motion for an injunction pendente lite, plaintiff appeals.

<p>1. Railroads <$=>400(2) — Knowledge of position of employee of bridge contractor held for jury.</p> <p>In an action against a railroad for injuries to a bridge contractor’s,, employee, sustained when an awning projecting from a locomotive cab struck a scaffold on which he was working, refusal to instruct peremptorily that the railroad should have known of his position on the scaffold held not error; the question under the evidence being for the jury.</p> <p>2. Railroads <$=>401 (I) — Instruction on care required as to bridge contractor’s employee held sufficient.</p> <p>In an action against'a railroad for injuries to a bridge contractor’s employee, sustained when an awning projecting from a locomotive cab struck a scaffold on which he was working, instruction as to railroad’s duty to operate train so as to avoid injury held sufficient.^</p> <p>3. Appeal and error <$=>882(14) — Plaintiff could not complain of submission of issues raised by him. , .</p> <p>Plaintiff could not complain of instructions submitting grounds of negligence charged in his petition, and in support of which he presented testimony.</p> <p>4. Appeal and error <®=>216(1) — Failure to give instruction not requested not considered.</p> <p>The Circuit Court of Appeals will not consider court’s failure to give an instruction not requested, except to prevent a miscarriage of justice.</p> <p><gi3For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes-</p> <p>5. Appeal and error <§=>263(3) — Refusal to give instruction not considered, in absence of exception.</p> <p>Refusal to give instruction will not be considered, in the absence of an exception, except to prevent a miscarriage of justice.</p> <p>6. Appeal and error <§=>1067 — Refusal to submit issue of railroad’s negligence in not sounding whistle held not prejudicial error.</p> <p>Where the city in which- a bridge contractor’s employee was injured when a scaffold on which he was working was struck by a locomotive bad an ordinance forbidding the blowing of engineer’s whistle, except as a signal to apply brakes in case of immediate or impending danger, and there was no evidence of such danger, the plaintiff was not prejudiced by the court’s refusal to submit question whether the railroad was negligent in not warning the employee by whistle of train’s approach.</p> <p>7. Appeal and error <§=>1067 — Failure to submit question whether railroad should have stationed watchman to warn of-approach of trains held not reversible error. '</p> <p>In an action against a railroad for injuries to a bridge contractor’s employee, sustained when an awning projecting from a locomotive cab struck the scaffold on which he was working, refusal to submit question whether the railroad should have stationed a guard or watchman to look for approaching trains and to notify employee thereof held not reversible error, in view of instructions as to railroad’s duty and the evidence in the case.</p> <p>8. Trial <§=>237(6) — instruction on burden of proof held not erroneous.</p> <p>Instruction that a plaintiff is entitled to judgment only when by'the greater weight of the evidence he “satisfies” 12 men that he is “entitled to have some one else’s property turned over to him in satisfaction of his claim” held not erroneous.</p> <p>D. New trial <§=>157 — Affidavit of absent witness that he was prevented from attending trial by defendant’s claim agent held to entitle plaintiff to have the matter inquired into.</p> <p>In an action for injuries to independent contractor’s employee, affidavit of another employee, who was working with plaintiff when the accident occurred, that he intended to testify for plaintiff, but on the day before the trial was given a drink by two strangers, one of whom he identified as the railroad’s claim agent, that the drink made him unconscious for eight days, and that he would give certain testimony for plaintiff, held to entitle plaintiff, on motion .for a new trial, to have the charges against the claim agent inquired into and passed on, and it was error to deny the motion without inquiring into its merits.</p> <p><©s^>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>Action by'William E. Regan against the Erie Railroad Company for damages for personal injuries. Judgment for plaintiff, and defendant brings error.</p>

Libel by Ferdinand Gutman & Co., Inc., against the steamship C Lopez y Lopez, her engines, etc., in which the Compañía Trasatlántica claimed the steamship, etc. Decree for libelant, and claimant appeals.

<p>In Equity. Suit by Hulbert & Dorsey and others against the Bridgman Company.</p>

<p>Bankruptcy 196 — Right to assert lien as against trustee held lost by laches.</p> <p>An execution creditor, whose execution was a lien on personal property of the debtor under the state statute, but who for six years caused no levy to be made on certain property, which in the meantime was sold by debtor to bankrupt, and passed into the hands of his trustee, held not entitled to assert his lien as against the trustee, on the ground that he did not previously know that his debtor had owned the property, in view of Bankruptcy Act, § 47, as amended (Comp. St. § 9631).</p> <p>(§^>For other cases see same topic & KEY-NUMBEB in all Key-Numbered Digests & Indexes</p>

<p>1. Railroads <@=>229 — Strike no excuse for use of cars out of repair.</p> <p>In a suit for penalty for using cars with defective safety appliances, it is no defense that, by reason of a strike and state of violence approaching war, inspection and repair of cars was impossible.</p> <p>2. Constitutional iaw <@=<297 — Eminent domain <@=>2 (8) — Railroads <@=>229— Statute imposing penalty for using cars out of repair held valid.</p> <p>A statute imposing penalties on railroads using cars with defective safety appliances does not take property for public use without compensation, nor deprive a carrier of its property without due process of law.</p> <p>3. Commerce <@=>i — Regulations by Congress under commerce clause comparable to exercise of police power.</p> <p>The regulations by Congress, properly made under the commerce clause of the Constitution, are comparable to tbe exercise of tbe police power by tbe states. °</p> <p>4. Constitutional law <@=>241 — Statute imposing penalty for using defective cars not denial of equal protection.</p> <p>The statute imposing a penalty on a railroad corporation for using cars with defective safety appliances is not invalid, as denying equal protection of law, by penalizing the corporation, and not servants who should have inspected and repaired cars.</p> <p>5. Searches and seizures <@=>7 — Inspection of railroad cars held not unreasonable.</p> <p>Inspection of cars by inspectors on the premises of a railroad without invitation or permission is not a violation of Const. Amend. 4, relating to unreasonable searches; inspection being made to determine whether safety appliances Were in proper repair, under Act March 2, 1S93, § 6 (Comp. St. § 8610), and Act May 27, 1908, § 1, no paper or property having been seized, and no house or even private place having been entered.</p> <p><&=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexea</p>

<p>' I. Patents <§=328— 1,079,675, for convertible crib, held invalid for lack of Invention.</p> <p>Trimble patent, No. 1,079,675, for convertible crib, held invalid for lack of invention, in view of prior art.</p> <p>2. Patents <§=328 — 1,321,905, for portable crib, held invalid for want of invention.</p> <p>Gannon patent, No. 1,321,905, for portable crib, held invalid for want of invention, in view of prior art. .,</p> <p>3. Patents <§=36 — Commercial success held not, persuasive of invention.</p> <p>In suit to enjoin infringement of patents for crib, in which the defendant claimed that plaintiff’s patents were invalid for lack of invention, the commercial success of" plaintiff’s cribs-was not persuasive of inventlon, in view of facts showing lack of invention, since the rule making commercial success persuasive of invention applies mainly where the court is in doubt as to whether the device or structure involved the exercise of the inventive fadulty.</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>4» Patents <©=>112(3)— Presumption of validity from grant may ¡j® outweighed toy facts showing lack of invention.</p> <p>In suit involving validity of patents, the presumption of validity from the grant itself is ordinarily given weight; but the presumption may be outweighed by facts showing lack of invention.</p> <p>So Trafis-marko and trade-names and unfair oompetitiosi ®=358 — Trade-mark “ECiddie-SCoap” held infringed Esy “SCumfy ECrife” with similar border.</p> <p>Trade-mark “Kiddie-Koop,” for cribs, with border of animals and figures around a print or picture of a crib, helé infringed by trade-mark “Kumfy-Krib.”</p> <p>S. Trade-marks and trade-names and unfair competition Enfringeriiieiit of trade-mark enjoined, without showing actual damages.</p> <p>The infringement of a trade-mark will be enjoined, without the showing of actual damages.</p> <p><sp»For other cases see same topic & KEY-NUMBER m all Key-Numbered Digests & Indexes</p>

<p>Appeal from the Commissioner of Patents.</p> <p>In the matter of the application of Edward C. Carr. From a decision denying two claims of the application, applicant appeals.</p>

Petition by I. M. Taylor & Co., Inc., against the Deep Sea Fisheries, • Xn'c., and others, to require the exchange of .shares of common stock of the East Coast Fisheries Company, held by petitioner as trustee, for voting trust certificates of the Deep Sea Fisheries, Inc., in accordance with a plan of reorganization of the East Coast Fisheries Company. Petition denied, and petitioner appeals.

<p>1. Removal of causes <§=^25(I) — Complaint in suit to eancol oil and gas ¡ease executed by guardian of minor Indian held removable.</p> <p>The complaint in a suit to cancel an oil and gas lease, executed under Act May 27, 1998, by the guardian of a minor, who was a full-blood Choctaw Ifidian, held, to assert claims arising under federal law, and hence, under Judicial Code, §§ 24, 28 (Comp. St. §§ 991, 1910), properly removed to and tried in a federal court.</p> <p>2. Indians (§=»!6(3) — Probate order approving gas lease by guardian off minor Indian held only order required to render lease valid, notwithstanding rule of Secretary of the Interior.</p> <p>An order of the probate court, approving a gas lease of allotted Oklahoma lands, not including the homestead, executed under Act May 27, 1998, by the guardian of a full-blood minor Choctaw Indian, is the only order required to render the lease valid, notwithstanding provisions of Oklahoma statutes relative to sales of lands of minors, and a rule adopted by the Secretary of the Interior under section 2, purporting to require a probate order authorizing guardian to make a lease, and an order confirming the lease, in view of sections 2 and 6, evincing a clear purpose to empower the Secretary to approve a lease, if in his judgment it is to the best interests of the minor to do so, when executed in compliance with local procedure.</p> <p>©^3 For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States- for the District of Vermont.</p> <p>Action at law by George B. Howard against the Central Vermont Railway Company. Judgment for plaintiff, and defendant brings error.</p>

Cotteral, Judge. Suit in equity by the United States against the Oklahoma Gas & Electric Company. From a decree denying an injunction, and dismissing the bill, the United States appeals.

Suit by the Cravjford, McGregor & Canby Company and another against Thomas E. Wilson & Co. From a decree dismissing the complaint on motion before answer, complainants appeal. This appeal is from a decree of the District Court for the Southern District of New York, dismissing, on motion before answer, the complaint on the ground that the patent in suit was void on its face for lack of patentable invention.

Dibel in admiralty by Frank Sleemas against the steamship Kinghorn (claimed by the Britannia Steamship Company) and the Northern Dock Company. From a decree adjudging said Dock Company solely liable for injuries to libelant, it appeals.

In Equity. Suit by Annetta S. Merrill and others against Kate Atwood and others. On plaintiffs’ motion to remand and motion in lieu of a plea to the jurisdiction, and defendant’s motion to strike out the motion in lieu of plea.

<p>In Admiralty. Suit by Carl Waara against the steamer Atna, the Norwegian Africa & Australia Line, claimant, with John Gommerson aa intervening libelant. On exceptions to intervening libel.</p>

In Bankruptcy. In the matter of C. Carlton Kelley, bankrupt, in. which Charles A. Marshall was appointed trustee. Separate applications, one by the trustee and the other by the bankrupt, to enjoin the prosecution of a suit in a state court.

<p>Insurance <§=665(2) — Evidence held sufficient to show fire policies covered tank in rear of factory.</p> <p>In an action on fire policies, evidence held sufficient to show that the policies were intended to cover tank in the rear of the main building, connected therewith by a shed roof.</p> <p>@aa>For other cases see same topic & KEY-NUMBEK in all Key-Numbered Digests & Indexes</p>

<p>Railroads <®=>229 — Operation by switching crew held “train movement,” rather ’ than “switching operation.”</p> <p>Where switching crew picked up a number of cars and took them more than ¿,000 feet, from one yard to another, crossing a main-line passenger and east-bound freight track, and several town streets, held, that there was a “train movement” rather than a “switching operation,” within ■the Safety Appliance Act (Comp. St. §§ 8613-8615) and order of Interstate Commerce Commission requiring train to be operated with power or train brakes.</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Bledsoe, Judge. Charles Sherwin and another were convicted of using the mail for the purpose of executing an alleged scheme to defraud, and for conspiracy to commit that offense (United States v. Lee, 290 Fed. 517), and bring error.

Suit in equity by Elizabeth M. Nolte, executrix, and Frederick W. Nolte, executor, of the will of Charles H. Nolte, deceased, against the Hudson Navigation Company, with which áre consolidated suits by ¡fhe Farmers’ Loan & Trust Company, trustee, and by the National Commercial Bank & Trust Company of Albany, trustee, against the same defendant and others, for foreclosure of mortgages.

<p>In Error to the District Court of the United States for the Northern District of Alabama; William I. Grubb, Judge.</p> <p>Action by the City of Birmingham against the Louisville & Nashville Railroad Company and another. Judgment for defendants, and plaintiff brings error.</p>

<p>Appeal from the District Court of the United States for the District of Massachusetts; James M. Morton, Jr., Judge.</p> <p>Suit in equity by Helen F. Dolan against William E. Hurley, Acting Postmaster. From a decree (283 Fed. 695) granting an injunction, defendant appeals. Plaintiff dying, her administrator, Annie Dolan, ■appears in her stead.</p>

<p>Appeal from the District Court of the United States for the Second Division of the Northern District of California; George M. Bourquin, Judge.</p> <p>Suit in equity by the Eloesser-Heynemann Company against Kuh Bros. Decree for defendant, and plaintiff appeals.</p>

<p>At Faw. Action by Otto Fick against the Economic Machinery Company.</p>

<p>In Bankruptcy. In the matter of Hotel Equipment Company, bankrupt. On application to sell bankrupt’s real estate.</p>

<p>1. Municipal corporations <§=>63(1) — Declarations of ordinance as to emergency presumed true.</p> <p>Declarations of ordinance as to conditions and existence of emergencies are presumed to be true.</p> <p>2. Comineros ®=>67 — Licanse tax imposed on solicitors representing manufacturer in other state held not burden on interstate commerce.</p> <p>License tax imposed by an ordinance on solicitors within the city, who take orders for hosiery with small down payment, retained by solicitors as compensation for procuring tbe orders, and who turn orders over to sales manager, who forwards orders to manufacturer in other state, from which the hosiery is shipped to the purchaser, held not a burden on interstate commerce.</p> <p>8. Licenses <§=>7(2) — Ordinance imposing license tax on solicitors held based tm a reasonable classification.</p> <p>An ordinance imposing a license tax on solicitors engaged in soliciting orders for goods, wares, or merchandise, who demand, accept, and receive payment, or take money in advance of final delivery, heM based on reasonable classification.</p> <p>4. Licenses <®=>7(I) — License tax on solicitors held within police power.</p> <p>An ordinance imposing a license tax on solicitors who receive money in advance of final delivery, and requiring them to execute a bond, adopted on declaration by the ordinance as to existence of emergency created by fraud being perpetrated on the public by some solicitors, held within the police power of the city.</p> <p><®=>For other cases see same topic & KEY-NUMBEK in all Key-Numbered Digests & Indexes</p>

<p>1. Judgment <§=o56,G — Decree not res judicata, where there is no evidence and nt* certainty to every intent.</p> <p>Decree foreclosing trust deed executed by irrigation company was not res* judicata, where there was no evidence and no certainty to every intent, but only conjecture as to matters litigated and decided so that between purchaser at foreclosure sale and landowners having water rights matter of trust deed was at large and open to contention.</p> <p>2. Waters and water courses t§=ol56i/2 — Right of purchasers of land from irrigation company held preserved 5jy decree foreclosing trust deed.</p> <p>If by virtue of irrigation company’s trust deed any right accrued to" subsequent purchasers of land, held, that it vested in them under tlieir contracts or deeds from irrigation company, and was preserved to them by decree foreclosing trust deed.</p> <p>3. Wafers and water courses <S=>154(I)«-Tnisf in favor of future vendees in instrumentalities of irrigation heist declared.</p> <p>Stipulations in trust deed, statements, reservations, and contracts by irrigation company held to constitute declaration by irrigation company that it held instrumentalities in trust for subsequent vendees of lands to extent necessary for purpose of water supply to lands.</p> <p>4. Trusts <©=>21(1) — — No particular formal or technical words or instruments necessary to create.</p> <p>Trusts need no particular formal or technical words, or set phrases, and require only that they be in presentí, expressed in unequivocal language, and admit of but one reasonable interpretation, and that settlor, intent, property, object, consideration, and beneficiaries appear with reasonable certainty, and they may be created in writings not contemporaneous, or not inter partes.</p> <p>(@=»For other oases see same topic & KEY-NUMBER in all Key-Numberea Digests & Indexes</p> <p>5. Waters and water courses <§=257( I) — Landowners as beneficiaries of trust running with land cannot abandon rights by nonpayment of charges.</p> <p>Landowners did not abandon their rights in instrumentalities of irrigation company or their right to water by nonpayment of water charges, or by appeal to Public Service Commission, where they were beneficiaries of a trust declared by irrigation company, and covenanted to pay water charges, as covenants ran with land, inured to benefit of alh beneficiaries, and trustee could not, on plea of abandonment by a beneficiary sever water right from land and increase burden on other beneficiaries, but was bound to enforce the covenant by foreclosure of its lien.</p> <p>6. Waters and water courses <$=>154( I)— Perpetual water right held not merely contractual, with compulsory performance as only remedy.</p> <p>Right created by deeds of land by an irrigation company, with perpetual right to water, is not merely a contractual right so that only remedy would be compulsory performance, since sale of perpetual use of thing is sale of thing, whatever ground rent or other charge be reserved.</p> <p>7. Waters and water courses <$=>154(1)— Source and instrumentalities impressed with servitude in favor of purchasers of land from irrigation company.</p> <p>Sale of land by irrigation company, with appurtenant water right and service, impresses source and instrumentalities in power of grantor and necessary to enjoyment of water with a servitude or easement, of which grantee cannot be deprived without his consent, including dam to raise water into canal supplying water, wheel, and pump, and whether , driven by water, steam, air, gas, or electricity.</p> <p>g-^Pnr other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Appeaj. from the District Court of the United States for the District of Massachusetts; George W. Anderson, Judge. Suit in equity by the American Cone & Wafer Company and others against James Denaro. From a decree (283 Fed. 1011) dismissing the bill, plaintiffs appeal.

<p>1. Master and servant <®==>l 11 (I)— Duty under Safety-Appliance Act absolute.</p> <p>The duty imposed on interstate railroads by the Safety Appliance Act April 14, 1910, § 2 (Comp. St. § 8618), is an absolute and unqualified one, both to install the safety appliances and to maintain them in a secure condition.</p> <p>2. Commerce <S=»27(3) — Vehicles within Safety Appliance Act.</p> <p>The test of liability under Safety Appliance Act April 14, 1910, § 2 (Comp. St. § 8618), is not the engagement of the vehicle in interstate commerce, and the right of a private individual to recover is not dependent on whether he was engaged in interstate commerce, but the act is applicable to all vehicles used on any railroad which is a highway of interstate commerce, whether the vehicles themselves are engaged in interstate commerce or not; it being necessary merely that the car is “in use on its line.”</p> <p>S. Commerce <@=>27(8)— Safety Appliance Act held inapplicable to locomotive temporarily withdrawn from service and undergoing minor repairs in roundhouse; “haul or permit to be hauled or used on its line.”</p> <p>Safety Appliance Act April 14, 1910, § 2 (Comp. St. § 8618), making it unlawful for a common carrier to “haul or permit to be hauled, or used on its line,” any ear not equipped with required appliances, held inap- • plicable to a locomotive temporarily withdrawn from service and undergoing minor repairs in a roundhouse preparatory to early return to service, in view of section 4 (Comp St. § 8621).</p> <p>©paFor other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexe*</p>

Suit in equity by. the United States against the Butterworth-Judson Corporation, its receivers, and others. From the decree, complainant and certain defendants appeal. Appeals from a final decree dismissing the complaint and dismissing the counterclaim contained in the answers of certain of the defendants.

<p>1. Aliens ©=>25 — Alleged Chinese merchant’s interest in business must be substantial and real to warrant admission of son.</p> <p>Under Act Nov. 3, 1893, § 2, defining “merchant,” alleged Chinese merchant’s interest in business must be substantial and real, in order to warrant admission of his infant son.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Merchant.]</p> <p>2. Aliens ©=>32(8) — Finding that father of applicant for admission is not merchant sustained! by evidence.</p> <p>Finding by immigration officers that father of Chinese applicant for admission was not a merchant held sustained by evidence.</p> <p>other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Northern Division of the Eastern District of Washington; Jeremiah Neterer, Judge.</p> <p>Proceeding by the United States to forfeit and condemn one 1920 Premier automobile, in which J. E. Ashbroolc and another intervene. From an adverse judgment, the United States brings error.</p>

In Equity, Petition by the Crescent Beverage Company for the return of premises and utensils seized pursuant to a search warrant issued by a United States commissioner.

<p>In Error to the District Court of the United States for the Eastern District of South Carolina, at Charleston.</p>

<p>In Error to the District Court of the United States for the Southern District of New York. Writ of error to judgment of conviction entered in the District Court for the Southern District of New York.</p>

<p>Appeals from the District Court of the United States for the Eastern District of New York.</p>