Volume 298 — Federal Reporter

Dooling, Judge. Suit in equity by James Jerome against James Crosby Brown, of Brown Bros. & Co., and others, doing business under the designation of the “United States Lloyds.” Decree for complainant, and defendants appeal. On March 16, 1916, the California South Sea Navigation Company chartered from the owner thereof the steamer Roanoke.

<p>Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>Suit by Otto R. Barnett against the Anchor Company and another. Decree for defendants, and plaintiff appeals. Affirmed.</p>

Appeals from tbe District Court of tbe United States for tbe Southern District of New York. Separate suits by tbe Radio Corporation of America and others against J. H. Bunnell & Co., Inc., A. H. Grebe & Co., Inc., and tbe American Telephone & Telegraph Company. From an order dismissing counterclaims, defendants other than tbe Telephone Company appeal. Appeals dismissed.

<p>In Error to the District Court of the United States for the District of Vermont.</p> <p>Action by Vera Daniel, as administratrix of the estate of Louis Daniel, against the Boston & Maine Railroad. Judgment for plaintiff, and defendant brings error.</p> <p>Writ of error to a judgment entered by the District Court in favor of plaintiff below for $16,500. The nature of the accident and the questions involved were sufficiently discussed in 290 Fed. 916, when the case was here before.</p> <p>On the second trial, some additional testimony was adduced by plaintiff upon the question as to whether or not the crossing was a public highway. The court, as before, submitted to the jury two questions: (1) “Was the road a public highway and the crossing a public crossing?” and (2) “If the road and crossing were a private road and crossing, was the defendant negligent in running its engine over the crossing at the speed and in the way and manner it did?” To each of these, the jury answered, “Yes,” and the verdict followed.</p>

<p>1. Principal and agent <§= 103(7)— Contracts made by agent held binding on principal.</p> <p>Orders for lumber given by plaintiff and accepted in writing by defendant’s agent held to constitute binding contracts, where the agent had apparent authority, which had not been denied by defendant as to previous contracts so made with plaintiff, and was not as to these contracts until several months afterward.</p> <p>2. Contracts <§=>253—Rescission must be by mutual consent.</p> <p>In the absence of a legal ground for rescission, a contract cannot be ■rescinded, except by mutual consent.</p> <p>3. Principal and agent <@=»I6I (4)—Letter asking cancellation, not agreed to, held not to terminate contract.</p> <p>A letter from defendant to plaintiff, ashing cancellation of contracts for business reasons stated, was not a repudiation of the contracts on the ground of want of authority of the agent who made them, so as to effect their termination.</p> <p>■g—.Fnr other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Appeal and error <@=237(5)—No review of sufficiency of evidence, In absence of motion for directed verdict.</p> <p>In absence of motion for directed verdict, question of the sufficiency of' evidence to justify verdict is not before Circuit Court of Appeals.</p> <p>2. Master and servant <©=291 (13)—Refusal of request denying recovery under Arizona Employers’ Liability Law for sickness held error.</p> <p>Refusal of a request that Arizona Employers’ Liability Law does not cover ordinary sickness, and if plaintiffs trouble was occasioned by disease, and not an injury while in defendant’s employment, he could not recover, field error, in view of the evidence.</p> <p><g=oFor other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Equity. Suit by tfye Real Silk Hosiery Mills against the City of Richmond, Cál., and others.</p>

<p>1. Conspiracy <§=43(6)—In indictment for conspiracy to commit an offense, such offense need be described only sufficiently to identify it.</p> <p>In an indictment for conspiracy to commit an offense against tlie United States, the offense which it is charged defendants conspired to commit need not be stated with the particularity that would be required in an indictment charging the offense itself, hut only with such particularity as to identify it.</p> <p>2. Indictment and information <§=l 11 (4)—Indictment for conspiracy to violate Prohibition Act held to sufficiently negative exceptions.</p> <p>In an indictment charging in separate counts a conspiracy to unlawfully manufacture whisky, to have in possession stills and apparatus designed and intended for the unlawful manufacture of whisky, and to unlawfully furnish, sell, and keep in possession whisky, the words “unlawfully” and “unlawful” Jield-, in view of National Prohibition Act, tit. 2, § 32 (Oomp. St. Ann. Supp. 1923, § 10138%s), to sufficiently exclude the exceptional cases in which the things charged may lawfully be done under the act.</p> <p>3. Indictment and information <§=I II (I)—Indictment for conspiracy to uniawfully manufacture or sell liquor need not allege that it was intended for beverage purposes.</p> <p>An indictment for conspiracy to unlawfully manufacture or sell liquor need not allege that it was intended for beverage purposes, in view of National Prohibition Act, tit. 2, §§ 3, 32 (Comp. St. Ann. Supp. 1923, §§ 10138 % a a. 10138%s).</p> <p>4. Conspiracy <§=43(6)—Intoxicating liquors <§=216—Word “whisky,” used in indictment, connotes intoxicating liquor.</p> <p>The word “whisky,” used in an indictment for violation of or conspiracy to violate, the Prohibition Act, connotes intoxicating liquor, and its fitness for beverage purposes need not be alleged.</p> <p>[Ed. Note.—Bor other definitions, see Words and Phrases, First and Second Series, Whisky.]</p> <p>5. Indictment and information <§=¡ 19—Immaterial averments may be treated as surplusage.</p> <p>An averment in an indictment that is immaterial, and might be stricken out without vitiating the indictment, nlay be disregarded as surplus-age. .</p> <p>©=oFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Admiralty. Libels in personam by the Morse Dry Dock & Repair Company against the United States as owner of the Princess</p> <p>Matoika, the Pocahontas, the Susquehanna, the Potomac, and the America.</p>

<p>I. Shipping <@=>39—If identification fair, wide margin allowed in description.</p> <p>In the absence of bad faith or grossly misleading statements, if the identification of the vessel in a charter party is fair, a wide margin may be allowed in description.</p> <p>■ 2. Shipping <@=>39—Charter party construed as to cargo and freight.</p> <p>Charter party providing for furnishing of full and complete cargo, “not exceeding what she can reasonably stow,” etc., held to mean that vessel should be loaded with a full cargo, less space required for necessary coal, freight to be determined by number of tons of cargo carried, and that capacity of vessel should fairly resemble identification mentioned in descriptive clause. '</p> <p>3. Shipping <@=>39—Charterer held to have complied with requirements'as to capacity.</p> <p>Charterer held to have met requirements of charter in regard to capacity.</p> <p>4. Shipping <@=>58(2)—Presumed that everything shipped was for account of persons having ship for voyage.</p> <p>There is presumption that everything shipped on ship under charter was for account of those Who had entire ship for voyage, and they are liable for freight.</p> <p><gz^?For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Collision <©=>71 (I)—Bark dragging her anchor held in fault for collisions.</p> <p>A bark, which dragged her anchors during a heavy wind and came into collision with an anchored schooner and caused both to drift against a coal barge, heM solely in fault for all damage done: (1) For having a defective anchor chain which broke, leaving but one anchor to hold her; (2) in not paying out sufficient length of chain upon either anchor to give maximum resistance to dragging; (3) in not earlier accepting the offered assistance of a tug; and (4) in paying out her anchor chain and casting off the hawser from the tug when finally employed leaving her subject to the full force of the tide which drove her against the schooner.</p> <p>2. Collision <©=>71 (I)—Tug employed to assist bark which was dragging her anchor held not chargeable with fault</p> <p>A tug employed to assist a bark which was dragging her anchor held not chargeable with fault in rendering the service which rendered her liable for collision between the bark and other vessels.</p> <p>^»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes -</p>

<p>1. Internal revenue <§=>9—Live stock commission merchant held not “broker,” within Revenue Act, imposing.tax on broker'dealing in “merchandise.”</p> <p>Dive stock commission merchants, dealing in cattle, sheep, and hogs consigned to them, held not “brokers,” within Revenue Act 1918, § 1001, par. 1 (Comp. St. Ann. Supp. 1919, § 5980o), imposing a tax on “brokers,” and defining as a broker “every person whose business it is to negotiate purchases or sales of * * * merchandise for others”; such animals not constituting “merchandise.”</p> <p>[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Broker; Merchandise.]</p> <p>2. Internal revenue <®=>4—Thing not to be taxed, unless plainly within meaning of words used.</p> <p>A thing is not to be taxed, unless it is plainly within meaning of the words used.</p> <p><§z=s>For other cases see same topic & KEY-NUMBEK in all Key-Numbered Digests .& Indexes</p>

<p>L Removal of causes <§=>49 (3)'—Joint action against resident and nonresident for negligence.</p> <p>When the only negligence alleged is that of the engineer or servant of a carrier in charge, and thus the liability of the .carrier is bottomed solely on the rule of respondeat superior, the case is not removable by the nonresident carrier when sued jointly with the servant, who is a resident' of the state of suit. ,</p> <p>2. Removal of causes <§=>50—Joint action against resident and nonresident for negligence; “separable controversy.”</p> <p>When two or more acts of negligence are averred in plaintiff’s petition, in some of which the removing nonresident alone took part, and in others of which the resident defendant alone took part, and they are not clearly alleged to have operated jointly and concurrently in causing the injury complained of, a separable controversy exists, and the cause is removable.</p> <p>[Ed. Note.—Eor other definitions, see Words and Phrases, First and Second Series, Separable Controversy.]</p> <p>3. Removal of causes <§=>50—Joint action against resident and nonresident for negligence.</p> <p>When two or more acts of negligence are pleaded, and it is averred that all such acts operated jointly and concurrently as the direct, proximate, and producing causes of injury to plaintiff, the controversies are not separable, and the cause is not removable, even though as to one or more of such acts the removing nonresident defendant alone took part.</p> <p>■4. Removal of causes <§=>61— Joint action against resident and nonresident for negligence.</p> <p>AVhen notwithstanding the averment in plaintiff’s petition that the separate and independent acts of negligence of the resident and nonresident defendants jointly and concurrently operated to produce- the injury complained of, it yet sufficiently appears from such petition that said acts, from their nature, or from the situation pleaded, or under the law of the state, could not have operated jointly and concurrently, it seems that a separable controversy exists and the cause is removable</p> <p>5. Removal of causes <§=>61—Whether separable) controversy exists is to be determined from plaintiff’s pleading.</p> <p>Whether the acts of negligence pleaded in a joint action against a resident and a nonresident defendant are joint and concurrent, or whether they operated jointly and concurrently in causing the injury, is to he determined from the language of plaintiff’s petition, when read and construed in the light of the local or state law.</p> <p><£r»For other cares see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Admiralty. Suit by the Newport News Iron Works, Inc., against the United States and others, as owners of the American steamship Castlewood.</p>

<p>Internal revenue <®=>46—Automobile used for transportation of narcotics to'effect illegal sale not subject to forfeiture.</p> <p>Rev. St. § 3450 (Comp. St. § 6352), providing for forfeiture of vehicles used in the removal or for the deposit or concealment of any article on which a tax is imposed with intent to defraud the government of such tax, cannot be construed to cover mere unlawful transportation, and does not authorize forfeiture of an automobile used merely for transportation for the purpose of effecting an illegal sale of narcotics.</p> <p><©^5>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Discovery <§=310—Spouse need not answer interrogatories, where answers would be in effect testimony against other spouse.</p> <p>Plaintiff, in creditor’s bill against judgment debtor and his wife, seeking sale of property the legal title of which was in judgment debtor’s wife, cannot, under Supreme Court equity rule 58, compel defendants to answer interrogatories as to the property, as there can be no discovery by either spouse in relation to the defense of that one alone, and under Code D. 0. § 1088, one spouse cannot be compelled to testify against the other.</p> <p><@cs>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Patents @=»328—942,169, for means for forming concrete columns, claims 3 and 4, held void.</p> <p>The Deslauriers patent, No. 942,169, for means for forming concrete columns, comprising a split casing in telescoping sections, claims 3 and 4, held void, as not within the disclosure of the specifications, and on other grounds.</p> <p>2. Patents @=>328—944,543, for means for forming concrete ceiling and supporting columns, heid void for lack of invention.</p> <p>The Deslauriers patent, No. 944,543, for means for forming concrete ceiling and supporting columns/ claim 1, for a sheet, metal mold shaped to form the top of a column, with a flange at the top on which is placed a plate to support the ceiling in setting, held merely for an aggregation of old devices, and void for want of invention.</p> <p>3. Patents @=>328—1,143,107, for means for forming unitary column and ceiling, heid void for lack of invention.</p> <p>The Deslauriers patent, No. 1,143,107, for means for forming unitary column and ceiling, claim 1, held void for lack of invention; also held not infringed.</p> <p>g-,TOr other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Brokers <§=58—Broker not entitled to commission on sale, where parties in- - tended contract to be in writing and it was never signed.</p> <p>Under agreement by defendant to pay plaintiff commission on sale of.property, if plaintiff produced buyer with whom sale was consummated, plaintiff held not entitled to the commission where defendant and buyer so produced discussed the terms of a contract, which as agreed on were dictated to a stenographer until all terms were agreed on and the parties left with the intention of signing the contract as dictated, when transcribed, but it was never signed.</p> <p><gnraFor 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 Kansas; John C. Pollock, Judge.</p> <p>Suit in equity by Earl C. Elliott against the Empire Natural Gas Company and others. Decree for defendants, and complainant appeals.</p>

<p>In Bankruptcy. In the matter of the Spinks Drug Company, bank- • rupt. On intervention of the Ridley-Yates Company. On review of referee’s judgment against intervener.</p>

<p>In Equity. Suit by the American Chemical Paint Company against the C. R. Wilson Body Company.</p>

<p>In Equity. Suit by Fred H. Williams and another, trustees in bankruptcy of the Inter-City Trust, against Ezekiel C. Sargent. On petition by complainants for aft order requiring defendant to release certain property from mortgage.</p>

In Admiralty. Libel by the Luckenbach Steamship Company against the Gano Moore Company and others. On exceptions to a petition under admiralty rule No. 56, bringing in the named respondent as a third party. The libel is upon a bill of lading issued by the libelant to the charterer, Gano Moore Company, for the carriage of a cargo of coal to Buenos Ayres.

<p>1. United States <3=5272, New vol. I9A Key-No. Series—Demurrer to defense alleging agency of Fleet Corporation for United States not disclosed, but admitting execution of contract, sustained.</p> <p>Where contractor admitted execution of contract with United States Fleet Corporation, which was described as “representing the United States,” a demurrer to contractor’s defense to action on contract by United States, as assignee of Fleet Corporation, alleging that agency of Fleet Corporation was not disclosed for three years, was sustained.</p> <p>2. United States <@=5272i New vol. 19A Key-No. Series—Provision for review of decisions of Director General under contract with Fleet Corporation held unenforceable for want of Director General.</p> <p>Where contract between United States Fleet Corporation and contractor for construction of marine boilers provided that disputes should he referred to Director General “of the owner,” and giving contractor right to have such decisions reviewed by board of naval architects or engineers selected by parties, held that, where there was no Director General, provision was unenforceable.</p> <p>3. Pleading <s=369(2)—Contractor's, affirmative defense to action for overpayment held not inconsistent with his denials.</p> <p>In action against contractor by United States, as assignee of United States Fleet Corporation, for overpayment on marine boilers resulting from mutual mistake, affirmative defense that contract did not fix the time when market price should control, and that contractor’s letter, stat- ' ing its understanding that market price for May, 1918, was intended, was before the Fleet Corporation when contract was executed, and that there was therefore no mistake in the amount credited Fleet Corporation, held not so consistent with contractor’s denials as to warrant compelling an election.</p> <p>4. Limitation of actions <@=24(2)—>Rights of United States, as assignee of Fleet Corporation, held to arise out of written contracts.</p> <p>Where determination of rights of United States, as assignee of Fleet Corporation, and marine boiler contractor, required construction of written contracts, the cause of action arose put of contracts in writing, and, even if Washington statute of limitation was applicable, six-year provision of Rem. & Bal. Code Wash. § 157, and not three-year provision of section 159, was applicable.</p> <p><gs=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests ¿5 indexes</p>

M. Bourquin and Wm. C. Van Fleet, Judges. Action by the United States against John H. McCallum and others, constituting the Board of State Harbor Commissioners of the State of California, operating the State Belt Railroad. From an adverse judgment (281 Fed. 834), defendants bring error.

<p>In Error to the District Court of the United States for the Western District of Oklahoma; John H. Cotteral, Judge.</p> <p>Action at law by the Collins-Dietz-Morris Company against the Meinrath Brokerage Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from the District Court of the United States for the Western District of Oklahoma; John H. Cotteral, Judge.</p> <p>Suit in equity by C. K. MacFadden against D. B. Mason and others. Decree for complainant, and defendant Mason appeals.</p>

<p>1. Appeal and error <§=>345(1, 2)—Time allowed for writ of error or appeal does not begin to run until motion for new trial or petition for rehearing disposed of.</p> <p>If motion for new trial or petition for rehearing is presented in season and entertained by court, time allowed for writ of error or appeal does not begin to run until motion or petition is disposed of.</p> <p>2. Principal and agent <§=>100(4)—Agent cannot pledge principal’s property to secure personal loan to himself.</p> <p>Agent cannot pledge-principal’s property to secure personal loan to himself.</p> <p>3. Corporations <§=425(6)—Cannot question agent’s transfer of property belonging to another as collateral for personal loan.</p> <p>Where manager of corporation’s Shanghai business transferred property belonging to another corporation as collateral security for personal loan, principal could not question transaction, notwithstanding order for transfer was signed in its name by agent as manager; principal’s name being merely surplusage.</p> <p>4. Principal and agent <§=100(4)—That agent obtained principal’s property by fraud held not to affect rights of bank taking it as collateral for loan.</p> <p>That agent obtained property of principal through fraud held not to affect rights of bank, which took it as collateral security for personal loan to agent for valuable consideration, in good faith, and without notice.</p> <p><@r=?For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Petition to Superintend and Revise from the District Court of the United States for the Western District of Louisiana; Rufus E. Foster, Judge. In the matter of the estate of Duplex Derouen, bankrupt. On petition to superintend and revise a determination in favor of the Southwest Louisiana Farm Mortgage Company.

<p>In Error to the District Court of the United States for the Eastern District of Pennsylvania; J. Whitaker Thompson, Judge.</p> <p>Criminal prosecution by the United States against Eouis S. Caste i Judgment of convictio'n, and defendant brings error.</p>

<p>At Law. Action by John L. Crosthwaite against the Moline Plow Company, now known as the Illinois American Plow Company. On plaintiff’s motions for judgment on pleadings, and defendant’s motion ■to dismiss complaint.</p>

<p>In Equity. Suit by J. L. Lancaster and C. W. Wallace, receivers of the Texas ■& Pacific Railway Company, against the Gulf, Colorado & Santa Fé Railway Company.</p>

<p>Criminal prosecution by the United States against Addeson Walker Tippitt. On demurrers and exceptions to indictment.</p>

. In Equity. Suit by John A. Reagan, as trustee, against the Midland Packing Company and others. On objections to jurisdiction and motions to dismiss plaintiff’s bill.

<p>1. Contracts <§=242—Right to extension held waived by failure to demand extension in making supplemental contract.</p> <p>Contractor, by entering into a supplemental contract with owner without demanding an extension of time for completion, because of delay for which he was not responsible, waived the right to extension.</p> <p>2. Contracts <§=>294—Substantial compliance doctrine inapplicable to provision of contract entitling contractor to increased pay on completion before specified date.</p> <p>Law of substantial compliance held inapplicable to provision of contract entitling contractor to increased pay on completion before specified date.</p> <p>3. Costs <§=42 (8)—Defendants held liable for costs, where tender not made after suit begun.</p> <p>Owner, who did not pay into registry of court, nor tender after commencement of suit, the amount adjudged due contractor in contractor’s suit, held liable for costs, notwithstanding tender before suit.</p> <p><j^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>At Law. Action by John Simon against Thomas W. Miller, as Alien Property Custodian.</p> <p>Trial upon a petition under section 9 of the Trading with the Enemy Act (Comp. St. Ann. Supp. 1923, § 3115%e). The plaintiff lived in New York and had had financial dealings with a German subject, one Albert, which had not then, and never have, been stated between them. He denies now, though originally he conceded, that a statement would result in a balance of account against him. On June 14, 1917, after various transactions with officers of the Department of Justice, he made a deposit of $350,000, the amount of the sum due, as he then supposed, in the American Exchange Bank, which he agreed not to withdraw until the end of the war, except upon the signature of himself and his counsel, a person trusted by tbe department, and not to pay any part of it to Albert. Thereafter on December 13, 1918, the Alien Property Custodian served upon {he bank a demand under section 7 „(e), being Comp. St. Ann. Supp. 1923, § 3115%d, for tbe amount of the deposit as property held for Albert. On January 6. 1919, this was followed by a second demand upon the bank in somewhat amplified language, hut not substantially different in effect. On April 3, 1919, a third demand was served, this time upon the plaintiff, affecting to seize the debt from the bank to the plaintiff by reason of the deposit, again asserting that it was held fdr Albert’s benefit.</p> <p>So far there was no attempt to seize the account between the plaintiff and Albert, but on June 1, 1920, such a demand was made on the plaintiff. This determined that Albert was an enemy and that the plaintiff owed Albert, on a statement of the account, the sum of $635,040.96. This sum the demand attempted to seize, and the plaintiff was forthwith required to pay it to the Custodial!. After a litigation not necessary to set forth, the Custodian got possession of the deposit in the American Exchange Bank, which this petition was filed to recover.</p> <p>The defendant asserts title to the deposit on the ground that it was in any aspect property held in trust for Albert, since he had at least an eventual interest in it. Next that, quite independently of this, the Custodian had the right to state the account between Albert and the plaintiff ex parte, and to require the plaintiff to pay the balance found; and, if so, that, having got possession of the fund, the plaintiff might not recover it, though the capture was invalid as enemy property, until the accounts were stated in this court, and until it appear how much is due between the parties.</p> <p>The plaintiff asserts that the deposit was not made for Albert’s benefit, but always remained tbe plaintiff’s property. Hence the three captures of it were invalid. As to the defendant’s capture and statement of the account, that, although by the capture the defendant was substituted for whatever rights Albert had in the account, any ex parte statement was not valid against him, that he was not bound to pay anything till some court had stated the account, and that the defendant had no right to retain the deposit as his asset. Hence that his title to the deposit was clear, and a decree should pass without more, leaving the defendant to sue him upon the captured account.</p>

Criminal prosecutions by the United States against John M. Clark and against Pete Hamel. On motions by defendants to quash search warrants and to suppress evidence secured thereby.

<p>1. Subrogation <§=>7(l)—Surety for release of attachment by subcontractor against contractor for public work not subrogated to-rights of plaintiff against contractor's surety.</p> <p>Where furnishers of labor and material to a contractor for public work brought suit against the contractor and attached property, which was released on the giving of a sheriff’s bond, the surety on such bond, who paid the judgments against his principal, cannot be subrogated to the rights which the plaintiffs in the suits would have had against the surety on the contractor’s bond, given under Act Aug. 13, 1894, as amended by Act Feb. 24, 1905 (Comp. St. § 6923). *</p> <p>2. Subrogation <®=»7( I)—Surety cannot be subrogated to rights against prior surety.</p> <p>The surety on a bond to release an attachment, on payment of the judgment against his principal, will be allowed to stand in the creditor’s place only as to his remedies against the person or property of the principal, and cannot be subrogated to the rights of the creditor against any prior surety.</p> <p>®=»For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Bankruptcy. In the matter of Jacobson & Berman, a partnership composed of Louis N. Jacobson and William Berman, bankrupts. On review of order of referee.</p> <p>In this case the trustee asked for an order, directed to bankrupt Berman, requiring him to turn over to the trustee the sum of $38,019, which it was alleged he had fraudulently misappropriated from the firm’s assets and was then fraudulently concealing. Upon the hearing had the following facts (as stated by the referee in his findings) were elicited:</p> <p>The bankrupts each for a number of years before the formation of their partnership, which is now in bankruptcy, had been retail merchants doing business in and about Southern California, buying or starting business at several .places, selling them out, and gradually accumulating some capital, In November, 1922, they became associated together as equal partners in a wholesale and retail automobile tire business. Between the time When this partnership was formed and the latter part of December, 1922, they became indebted to the Firestone Tire & Kubber Company to the extent of approximately $40,000, which indebtedness now remains unpaid. Said indebtedness was evidenced by trade acceptances, all of which became due after April 1, 1923.</p> <p>On the 2d day of January, 1923, a fire occurred in their place of business, and as a result they collected from certain insurance companies the sum of $25,000 cash as an adjustment of their loss. In addition, there were left, as part of the stock of goods on hand after the fire, tires of the salvage value of In excess of $7,000. The fire insurance money was paid to these partners on or about the 26th day of January, 1923. William Berman had before thgt kept the books for the partnership and had exclusive management of the financial arrangements of the company. He alone signed the check? and’ kept the record of cash in the bank. After the receipt of the insurance money he continued in complete charge of the bank account and was the only one of the partners who signed checks.</p> <p>As soon as the insurance money was deposited in the partnership bank account, Berman commenced drawing checks upon the account, cashing these checks, and appropriating the money to his own uses. This course of conduct on the part of William Berman commenced on the 26th day of January, 1923, and ended on the 29th day of March, 1923, and his system of operation was to tear bunches of checks out of the back of the current cheek book, all the checks in said current check book being serially numbered. The checks so tom from the back of the check book he carried about on his person, and filled out and cashed in rapid succession. He made no entry of his withdrawals upon the stubs of the cheek book. Some of these checks so used by Berman he cashed in Los Angeles and others in San Diego. During the period mentioned he drew and cashed 36 checks, totaling $36,674.</p> <p>None of the money dr-awn by the above checks has been turned over to the trustee, and the only statement as to its disposition is by Berman that he lost all of this amount of money, save not to exceed $500, in gambling at Tia Juana, Mexico. Berman states he gambled at Los Angeles, but says that all of his-Los Angeles gambling losses do not exceed the sum of $500, and, with the exception of not more than $500 lost in gambling at Los Angeles, he says the balance was lost mainly on the race track at Tia Juana, Mexico. He made flying trips to San Diego as he says, and always registered either at the Grant Hotel or the Maryland Hotel at San Diego in his own name. Apparently, according to the record, he visited San Diego and Tia Juana on 13 different days during the time he states he was playing the races.</p> <p>His explanation of his conduct in drawing checks in Los Angeles is that he wished to accumulate enough money to go down to Tia Juana to play the races, that he carried all or most of the money he received in cashing each series of checks in* Los Angeles on his next succeeding trip to San Diego, and that the reason he cashed additional checks in San Diego, which he did on several occasions immediately after arriving in San Diego and before the races, was that he thought he might need additional money to play upon the races.</p> <p>Although carefully examined to that end, Berman states that he is unable to state tbe amount of cash that he had in his pocket at,any time when he went to San Diego, the amount that he lost on the races on any date, or on any trip, the maximum amount that he lost on any day except that he does not believe it was over $1,000, and the only detail which Berman has furnished in connection with these losses is that he does not believe he lost more than $100 on any race.</p> <p>Asked upon his examination in bankruptcy upon what horses he had placed bets, be was unable to give the names of any horses, except one named Charley Boy; he did not remember how much he had bet on Charley Boy, only that he had lost on Charley Boy. After an adjournment of his examination during the noon hour, he came back and gave names of about a dozen other horses. He says that at the race track he started out with bets ranging from $40 to $60 on each race, and if he lost he sometimes increased his bets to $100 a race, hut never any more than $100 on any race. There were from seven to eight races each day the races were in progress. Sometimes he lost bets, sometimes he won bets, and won on many races according to his testimony. He states that on some days at tbe races he did not quit a loser, but on other days he lost.</p> <p>Berman presents no corroboration of his testimony with respect to the amount that he bet on tbe races, or with respect to his losses. On the contrary, the only man, one Cole, that Berman states he ever went to the races with, with the exception of Jacobson, testifies that'he was with Berman one entire afternoon at the track; that Berman did not bet over $5 on any race, and generally not more than $2, and that Berman’s total losses in the afternoon could not have exceeded $20. At the end of that day’s racing the witness states that, on their journey back to San Diego together the bankrupt stated to him that he had lost $25 on the day’s betting. Attempts were made by other witnesses to corroborate Berman’s story of betting losses, but none of the witnesses brought forward by Berman were able to state whether or not Berman had lost any money on the few occasions that they saw him at the nace track, and no one other than Cole ever saw him lose any money at Tia Juana.</p> <p>The referee concludes as follows: “Placing the most favorable construction upon the credible evidence introduced in his behalf, the referee finds that 'William Berman did not gamble away or lose out of the sums which he obtained upon tbe checks as aforesaid more than the sum of $1,674, and that he has concealed and is concealing from his trustee in bankruptcy now the sum of $35,000 in cash.”</p> <p>In consequence of this the following order was entered by the referee: “It is hereby ordered that William Berman, one of the above-named bankrupts, pay over to William H. Moore, Jr., trustee in bankruptcy herein, within ten (10) days from the date of service of this order upon him, the sum of $35,000 belonging to this estate in bankruptcy, and found to be in the possession of William Berman and under his control, and by him concealed from the trustee.”</p> <p>From the order the bankrupt has appealed to this court.</p>

<p>Habeas Corpus. Application by Aurora Zavala to be released from custody of Guy Smith, Immigration Officer..</p>

Woodrough, Judge. Suit in equity by John H. Hendriks against the Atlas Land Company and another. Decree for plaintiff, and the named defendant appeals.

<p>Appeal from the District Court of the United States for the Southern District of Florida; Rhydon M. Call, Judge.</p> <p>Suit in admiralty by the Southern Export Company against the , Bahamas-Cuban Company, Inc. Decree for libelant, and respondent appeals.</p>

<p>In Equity. Suit by Eouis H. Krietmeyer against the Baldwin Drainage District. On application for appointment of receiver for defendant.</p>

<p>Bankruptcy <S=404(2)—Date between discharges determines whether required period has elapsed.</p> <p>Under Bankruptcy Act, § 14b (Comp. St. § 9598), providing that under certain circumstances judge shall discharge applicant, unless he has been granted a discharge in voluntary proceedings within six years of a former discharge, date of second discharge, and not date of application for second discharge, determines whether six years have expired, in view of section 15 (Comp. St. § 9599).</p> <p><§s»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In Equity. Suit by Earl B. Barnes, as receiver of the Liberty Starters Corporation, against Charles Lee Andrews. Final hearing on a bill in equity, under section 91-a of the General Corporation Law of New York (Consol. Laws, c. 23), to hold liable the defendant as director for misprision of office. The corporation was organized under the laws of that state to manufacture starters for Ford motors and aeroplanes.

<p>In Equity. Suit by Jerome H. Remick & Co. against the American. Automobile Accessories Company. On motion to dismiss complaint.</p>

<p>In Equity. Suit by Dwight P. Robinson & Co., Inc., against Charles A. Otis and others, copartners doing business under the firm name and style of Otis & Co., and Victor T. Goggin. On motion by defendant Goggin to dismiss bill of complaint and-counterclaim and cross-bill of Otis & Co., or to transfer cause to law side of. court.</p>

In Equity. Stockholders’ bill by Foy & Shemwell and others against the Georgia-Alabama- Power Company and others, and accounting bill by Foy & Shemwell and others against the Georgia-Alabama Power Company. On motions to remand to the state court.

<p>In Bankruptcy. In the matter of the Harmony Theatre Company, bankrupt. On review of order of referee denying petition 'Of the Marr & Colton Company, Inc., for reclamation of property.</p>

<p>1. Internal revenue <S=»7—Government subsidies for construction and operation of railroad, payable after line constructed, held not taxable as'income.</p> <p>Subsidies to railroad of specified sum per mile by Cuban government, as consideration for agreement to build and operate railroad, held contributions to capital, and not taxable as income, notwithstanding one line was to' be completed before subsidies were to be paid, and government was given right of placing telegraph aiid telephone wires on right of way, and prescribe terms for carriage of mails, passengers, produce, and troops.</p> <p>2. Internal revenue i§=»36—Interest not allowed on tax erroneously paid because of commissioner’s mistake in calculation.</p> <p>No interest may be allowed on tax erroneously paid because of commissioner’s mistake in calculation after refund was accepted by taxpayer.</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In the matter of the petition of 'Dorothy Chamorra for naturalization.</p>

the District Court of the United States for the District of South Dakota; James D. Elliott, Judge. Action at law by Robert A. Fraser against John Kruger and another. Judgment for defendants, and plaintiff brings error.

Cotteral, Judge. Action by the Skelly Oil Company against Alice M. Cassidy, administratrix of the estate of M. Cassidy, deceased. Judgment for defendant, and plaintiff brings error.

<p>In Error to the District Court of the United States for the District of Nebraska; Joseph W. Woodrough, Judge.</p> <p>Action by Charles H. Quinn against Andrew Olsen. Judgment for defendant, and plaintiff brings error.</p>

<p>1. Patents <@=2| I (3)—Licensee may attack scope of claims by resorting to prior art.</p> <p>Though licensee may not question validity of patent, he may attack, scope of claims, and to that end may resort to prior art.</p> <p>2. Patents <@=328—No. 1,014,211, claims 7 and 8, for paint remover, held not infringed.</p> <p>Dosselman patent, No. 1,014,211, claims 7. and 8, for paint remover, composed of equal parts of benzol and acetone and 3% per cent, of waxy material, held not infringed, on theory of equivalents, by use of alcohol in place of acetone, in view of prior art.</p> <p><g^oFor other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Pollock, Judge. Action at law by W. T. Apple against G. U. Coleman, brought in state court and removed to federal court. Judgment for plaintiff, and defendant brings error.

<p>!. Evidence <@=28—Federal courts take judicial knowledge of law of state.</p> <p>The laws of a state, both statutory and as declared by'its highest court, are within the judicial knowledge of a federal court.</p> <p>2. Divorce <@=170—Marriage status continues until decree of divorce becomes final under state statute.</p> <p>Under Eev. St. Neb. 1913, § 1606, providing that “a decree of divorce shall not become final or operative until six months after trial and decision except far the purpose of review,” and that if proceedings for review are instituted within the six months “such decree shall not become final until such proceedings are finally determined,” as construed by the Supreme Court of the state, the marriage status between the parties continues until the decree becomes final under one or the other of such provisions.</p> <p>3. Divorce <@=326—Decree of divorce to be given effect in accordance with law of state.</p> <p>A decree of divorce is to be given the same effect in any court in -the United States that it has in the jurisdiction where it was rendered.</p> <p>4j Husband and wife <@=205 (2)—Wife cannot sue husband for libel.</p> <p>Under Missouri Married Woman’s Act (Eev. St. Mo. 1909, § 8304), providing that a married woman may sue her husband, either at law or in equity, as construed by the Supreme Court of the state, a wife cannot maintain an action against her husband for libel or other tort committed during coverture.</p> <p>cg^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>8. Internal revenue <g=2— Revenue act of 1916 applies to estate of one dying before act of 1918 went into effect.</p> <p>Revenue Act Sept. 8, 1916, as amended by Act March 3, 1917, and Act Oct. 3, 1917, applies to estate of one dying before Revenue Act of 1918 took effect, though estate tax had not been paid before act of 1918 went into, effect, in view of sections 401, 1400, of the later act (Comp. St. Ann. Supp. 1919, §§ 6336%b, 6371%a). .</p> <p>2. Internal revenue <|=»26—Estate tax becomes a lien on property at decedent’s death.</p> <p>Imposition of estate tax takes effect at time of death, and tax becomes at once a lien on estate property, enforceable by sale, if not paid.</p> <p>3. Internal revenue <@=»36—No implied promise to return part, where correct amount paid.</p> <p>Where correct amount of tax imposed has been paid, there can be no implied promise for return of any part of it.</p> <p>^-rvT?nr other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Mortgages <@=249(3)—-Rights of assignee of note secured by trust deed cannot he affected by subsequent action of assignor or trustee.</p> <p>The assignee of a note secured by deed of trust succeeds to all rights under the deed of trust, and his lien cannot be destroyed or released by the act of the original beneficiary nor of the trustee.</p> <p>2. Judgment <@=707—Assignee of a note secured by mortgage held not boiund by decree to which he was not party.</p> <p>The transferee of a note secured by trust deed ¡held not bound by the decree in a suit to which he was not a party, and of which he had no notice.</p> <p>®=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 Southern District of New York.</p>

<p>1. Monopolies @=>24(1)—Only suits for injunctive relief may be brought under Clayton Act, § 16.</p> <p>Clayton Act, § 16 (Comp. St. S835o), provides only for suits for injunctive relief against threatened loss or damage by a violation of the antitrust laws.</p> <p>2. Courts @=>274—Stockholders’ suit held not one uhder anti-trust laws.</p> <p>Suit by minority stockholders to set aside a transfer of property by the c.orporation, under control of a majority stockholder, is one to enforce rights under the charter contract and the fact that the transfer is alleged to have been in violation of the anti-trust laws does not make it one under such- laws, which, under Clayton Act, § 12 (Comp. St. § 8835k), maybe brought in a district other than that of which defendant is an inhabitant.</p> <p><©E»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indesea</p>

<p>1. Evidence <§=>588—Infirmity of human memory considered In weighing evidence as to events which occurred long before trial.</p> <p>In an action in which it was claimed that patent was invalid because of prior knowledge and use and two years public use, tbe infirmity of human memory, and tbe fact that tbe best recollections are obscured by lapse of time, are' factors of prime importance in weighing evidence as to events which occurred a long time prior to trial.</p> <p>2. Patents <§=>328—943,280, for improvements in Bessemerizing copper matte, held not anticipated and valid.</p> <p>Smith patent, No. 943,280, for improvements in Bessemerizing copper matte, held not anticipated and valid.</p> <p><S=^>For other oases see same topic & KEY-NUMBER in ail KeyÍNumbered Digests & Indexes</p>

In Bankruptcy. In the matter of Knauth, Nachod & Kuhne, bankrupts. On petition by Rose Fleischmann to reclaim assets. Petition by the customer of a broker to reclaim certain assets found in the hands of the receiver belonging to the petitioner. The question reserved at the argument was whether the indebtedness of the petitioner to the bankrupt should include en item of $2,100 charged against the customer under the circumstances set forth below.

<p>1. Collision ©=82(2)—Steasi lighter held solely in fault for collision with a destroyer, which had stopped in a fog.</p> <p>A steam lighter in a dense fog was following a government destroyer as they approached a gateway in a submarine net across the channel. The gate was open, but had sagged under the influence of the wind and tide, and had the appearance in the fog of being closed, or partly closed, and on approaching the destroyer stopped, but continued to sound her fog bell. While so stopped the lighter came into collision with her. Held, that the destroyer was not in fault, but that the fault was solely that of the lighter, which, knowing that the destroyer was ahead, was under the duty to proceed at such speed that she could be stopped alter sighting the destroyer.</p> <p>2. United States ©=3125—issues for determination in suit against United States under special act, stated.</p> <p>Under a special act authorizing a suit against the United States, for collision between a privately owned and a government vessel, to be determined “upon the same principle and measure of liability, with cost, as in like cases in admiralty between private parties,” the only question for determination is whether the government vessel was in fault, and the United States cannot he charged with liability for acts of negligence having nothing to do with the ownership of such vessel.</p> <p><grs>For other cascas see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Petition to revise order of the District Court of the United States for the District of North Dakota; Charles F. Amidon,,Judge. In the matter of the Minot Auto Company, Inc., bankrupt, in which W. F. Hines was appointed trustee. Petition by the United States to revise an order vacating an order enlarging the time within which a petition for review might be filed.

Bean, Judge. Action at law by the Mohawk Rubber Company of New York, Inc., against Edgar J. Munnell and Arthur J. Sherrill, individually and as partners doing business as Munnell & Sherrill. Judgment for defendants, and plaintiff brings error.

Suit in equity by Theodore Davis Boat, as executor of the will of Annie B. Davis, deceased, and another against the Metropolitan Museum of Art of the City of New York and another. From a decree dismissing the bill, complainants appeal.

<p>In Error to the District Court of the United States for the Northern District of Texas; James Clifton Wilson, Judge.</p> <p>Criminal prosecution by the United States against John Beal Sneed and J. Renfroe. Judgment of conviction, and defendants bring error.</p>

<p>L Vendor and purchaser @=>254(3)— Option contract held not to create vendor’s lien.</p> <p>An option to purchase land, which, does not bind the optionee to enter into a contract for the purchase, does not create a vendor’s lien in favor of the grantor.</p> <p>2. Judgment @=>744—Decree held not adjudication which relieved contract purchaser from paying balance of purchase price.</p> <p>Where at the time of a contract for sale of land an adverse claimant was in possession, and by agreement the making of deferred payments by the purchaser was suspended until he could he put in possession, for which purpose a suit was brought against the adverse claimant, a decree adjudging that the purchaser had complied with his contract, and was the equitable owner and entitled to possession, was not an adjudication that he was relieved from paying the remainder of the purchase price under his contract.</p> <p>3. Judgment @=>828(1), 892—Judgment determining title not affected by satisfaction of judgment for damages; erroneous judgment in state court binding in federal court.</p> <p>Satisfaction of a money judgment rendered by a state court can have no effect on another part of the judgment adjudicating title to land, which as between the parties is binding on a federal court, whether correct or not.</p> <p>^c^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the District of Minnesota; Wilbur F. Booth, Judge.</p> <p>Action at law by Ethel M. Olson against James C. Davis, as Agent under the Transportation Act of 1920 (Comp. St. Ann. Supp. 1923, '§ 10071et seq.). Judgment for plaintiff, and defendant brings error.</p>

<p>1. Appeal and error <®=»I041 (2)—Any error in denying motion to amend petition field harmless.</p> <p>Any error of the court in denying motion to amend petition to declare on a different contract was harmless, where court passed on such other contract, and it was unenforceable.</p> <p>2. Highways <&= 113(3)—‘Contract held unenforceable.</p> <p>Where county entered into contract with plaintiff, which was sent to Highway Commission for approval, and returned unapproved, with request that it be revised, and county and plaintiff subsequently executed another contract, following former contract in almost all essential respects, first contract was unenforceable.</p> <p>other eases see same topic '& KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Petition to Revise Order of and Appeal from the District Court of the United States for the Eastern District of Oklahoma; Robert E. Williams, Judge. Summary proceeding by George Harrison, trustee in bankruptcy of the Western Rope & Manufacturing Company, bankrupt, against Anna B. Chamberlin. On petition to revise and on appeal from an order in favor of trustee.

<p>Public lands <®=»120—Government held entitled to cancellation of patent for homo* stead.</p> <p>Evidence held to entitle the United States to cancellation of a patent for a homestead entry on the ground that the entryman did not reside on the land for the required time, and that the land officers were misled and deceived by false proofs.</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

States for the South-em District of Iowa; Martin J. Wade, Judge. Action at law by William C. Fraser, trustee in bankruptcy of the Nebraska-Iowa Mercantile Company, against the Des Moines Wholesale Grocer Company. Judgment for defendant, and plaintiff brings error.

<p>1. Shipping @=84(3)—Duty of ship ends when it furnishes stevedore safe place to work.</p> <p>Duty of ship ends when it furnishes stevedore safe place in_ which to work and a safe passage thereto, but defective construction invokes a different rule.</p> <p>2. Shipping @=84(3)—Ship charged with responsibility for furnishing covers for manhole suitable for purposes.</p> <p>Ship is charged with responsibility for furnishing covers for manholes suitable for purposes for which they are to be used, and is not absolved from duty of reasonable care for safety of stevedore invited on ship.</p> <p>3. Shipping @=84( I)—Stevedore, employed by stevedore company, an invitee on ship.</p> <p>A stevedore, employed by a stevedore company with whom ship has contract to load cargo on ship, is there by invitation, and ship must be reasonably sure not to invite such employee into danger.</p> <p>4. Shipping @=84(3)—Having manhole covers back to back net defective construction.</p> <p>That manhole covers opened hack to back, so that, if both of them were open at same time, one of them might fall on person entering one manhole was not defective construction, which would make ship liable for injury to stevedore.</p> <p>5. Damages @=132(8)—Stevedore disabled five month by loss of ends of fingers, operation being necessary, entitled to $1,750.</p> <p>An efficient stevedore, earning $150 per month, who was out of employment for five months by reason of loss of ends of fingers, further operation on finger being necessary at expense of $100, held entitled to $1,750 from stevedore company.</p> <p>igz^For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Evidence <@=>383(4)—Police certificate showing residence in Argentine prima facie reliable evidence.</p> <p>A certificate of police in Buenos Ayres showing that alien had been in Argentine for five years was prima facie reliable evidence, which should not be disregarded, in absence of discrediting evidence.</p> <p>2. Aliens <@=>54—Disregarding explanation for failure to produce certificate showing Argentine residence held denial of fair hearing.</p> <p>Where alien offered his affidavit taken before the American consul that he had presented to said consul certificate of police in Buenos Ayres showing that he had been in Argentine for five years and consul had retained it, action of board of special inquiry in disregarding explanation for failure to produce 7leli a-denial of a fair hearing, in absence of discrediting evidence.</p> <p>3. Aliens <@=>54—District Court may fix quality of aliens’ custody.</p> <p>Where District Court detains aliens only to give respondent opportunity to disprove a story on its face sufficient, it has power to fix the quality of custody.</p> <p><gc»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Admiralty. Suit for collision by the White Star Line, owner of the steamship Cedric, against the New York Central Tug No. 27.</p> <p>This cause comes up for final hearing upon a libel filed by the White Star Line against the New York Central tug No. 27, because of a collision between the tug’s loaded ear float and the libelant’s steamer, Cedric, on March 6, 1920, in the Hudson river, between 800 and 1,200 feet off Castle Point. The tide was at the first of the ebb, and the weather was clear, hut there was a gale blowing from the northwest. The tug started out at 12:04 p. m. from the Weebawken bridges, with the car float on her port hand, bound down stream. The car float was 334 feet long, and the tug about 100. She held her speed until after the collision, which happened between 12:18 and 12:20, as fixed by the engine log of the Cedric. The distance from the bridges to the place of collision is 10,200 feet, or slightly less than 194 knots. When not more than 400 or 500 feet away the tug ported, and afterwards hard aported and nearly cleared the stern of the Cedric; the contact being between the port quarter of the ear float about one-third of her length forward of the stem, and the rudder of the Cedric, which was at the time to starboard. The collision only ripped off some of the side strip of the float, but quite broke the steamer’s rudder at the post, thus making her entirely helpless.</p> <p>The Cedric had been lying on the south side of Pier 61, bows in, ready to back out and proceed downstream to sea. At 12:12- she was cast off, and ■both engines put astern; the starboard at full speed and the port at half. After a period of less than a minute her port engine was put full speed astern and continued for two minutes, when it was slowed down to half speed, and stopped at 12:16. It was immediately put full speed ahead, at which speed it continued until after the collision. At 12:18 her starboard engine was stopped, put slow ahead, and full speed ahead; the three changes being ordered close together. Whether both engines were going full speed ahead at the time of the accident is in dispute.</p> <p>Two assisting tugs were upon the steamer’s starboard quarter to hold her up against the wind. Nevertheless, as she backed out, the wind and tide caught her stem, which began to cant downstream. One of the tugs then went around on her port bow; the other remaining at her starboard quarter. So she backed into the stream, drifting down with the wind and the ebb tide, to the place of collision,, opposite Pier 57 on the Manhattan side. Though her stern had crossed the thread of the river by 400 feet or more, she was still headed about two points upstream. Whether she actually had sternway or not at the moment of collision is in dispute.</p> <p>The signals of the tug were two single whistles at intervals. The Cedric blew a slip whistle while starting and a backing signal, and later another slip whistle and two backing signals, at which last signals her nose had cleared the pier end.</p> <p>The tug had no lookout. There was a man cleaning brasses in the pilot house, and a float man, who was engaged about the cars. The steamer had upon the bridge a Sandy Hook pilot, who was in charge, the captain, two officers, a petty officer, three quartermasters, and a Boy Scout. On the after bridge were the first and third officers and a quartermaster.</p>

<p>Action by the Edgemont Coal Company against A. J. Asher. On defendant’s demurrer to petition.</p>

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

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

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

<p>Appeal from the District Court of the United States for the Southern District of New York, in Bankruptcy.</p>

<p>Appeal from the District Court of the United States foi* the Southern District of New York.</p>