Volume 299 — Federal Reporter

Suit in equity by Anthony Gerosa and the Hudson Motor Specialties Company against the Apeo Manufacturing Company. Decree for defendant, and granting defendant injunctive relief, and complainants, appeal.

<p>1. Criminal law <@=>178 — Indictment which is nolied not bar to second indictment.</p> <p>An indictment which is nolle prossed, defendant not having been put to trial thereon, is not a bar to second indictment for the same offense.</p> <p>2. Criminal law <@=>200(6) — Prosecution for conspiracy to commit offense not barred because prosecution for such offense is barred.</p> <p>That prosecution for an offense against the United States is barred by limitation does not bar a prosecution for conspiracy to commit such offense.</p> <p>3. Conspiracy <@=>45 — Evidence held competent.</p> <p>Under an indictment for conspiracy to commit an offense by the concealment by one of the defendants, while a bankrupt, of money received for goods sold from his trustee, testimony to his sale of goods shortly before bankruptcy was relevant and competent.</p> <p>4. Criminal law <@=>762(2)— Not error for judge to express an opinion on the facts.</p> <p>Under the federal rule, it is not error for a judge to express his opinion on the facts, provided he gives the jury to' understand that they are not bound by his opinion, but are free to exercise their own independent judgment.</p>

McClintic, Judge. • Actions at law by the Amicon Fruit Company against the Norfolk & Western Railway Company, and against James C. Davis, Director General of Railroads, as agent, etc. Judgments for defendants, and plaintiff brings error.

Rose and Morris A. Soper, Judges. Uibel in admiralty by the Curtis Bay Towing Company against the Grace Steamship Company, owner and claimant of the steamship Santa Barbara in which the Baker-Whiteley Coal Company and the Chesapeake Bighterage & Towing Company intervened. From -a decree (284 Fed. 365), giving them insufficient relief, libelant and interveners appeal.

<p>1. Admiralty <@=¿>118 — Appeal from dismissal of oross-libel does not open decree on original libel for review.</p> <p>An appeal from dismissal of a cross-libel opens the cause for review of all issues arising on the cross-libel, but not that part of the decree dismissing the original libel, where libelant has not appealed, though the libel and cross-libel were consolidated for convenience of trial.</p> <p>2. Shipping <@=¿>142 — Provision in bill of lading limiting time for bringing suit for damage to cargo held valid.</p> <p>Provision in a bill of lading requiring suit for damage to cargo to be brought within three months after notice of loss or damage held reasonable and valid.</p> <p>3. Shipping <@=¿126 — Carrier held to have assumed risk of delay in landing cargo.</p> <p>A contract of a carrier to transport goods to a foreign port and there land them, after which they are to be received by the consignee, imports no obligation on the part of the owner to aid in the landing, and the carrier assumes all risk of loss to itself from detention for lack of room or facilities for discharging.</p> <p>4. Shipping <@=¿>126 — Delay in discharging held at charge of carrier.</p> <p>Where a carrier contracted to land the cargo in a foreign port before the consignee was required to accept it, and it could have been discharged on the custom house wharf or a bonded wharf without payment of duty, the consignee could not be required to pay the duty in advance of discharge to enable the ship to discharge at an unbonded wharf, and is not liable for delay before discharge could be made at a bonded wharf.</p>

Petition to Revise Order of the District Court of the United States for the Eastern District of Arkansas; Jacob Trieber, Judge. In the matter of W. H. McBride, bankrupt; F. C. Mullinix, trustee. On petition by J. T. McBride and others to revise order of District Court.

<p>1. Mines and minerals <@=>78(2) — Forfeiture of lease on one 40 held properly denied, and properly granted as to other 40’s.</p> <p>Under oil and gas lease, providing that on certain date each 40-acre tract that was not developed should revert to lessor, court properly denied forfeiture as to one tract, on which a well had been started in time to complete it before that date, but its completion was prevented by unusual conditions, not to be anticipated, and properly granted forfeiture as to two other 40-acre tracts, on which no wells had been started, though seven 40’s out of ten had been developed, at an expense of §150,000.</p> <p>2. Judgment <@=>736 — -Declaratory judgment, interpreting ¡ease, held not res judicata in action by lessees to' quiet titie.</p> <p>A judgment, under Declaratory Judgment Act of Kansas, interpreting lease contract of ten 40-acre tracts, adjudging that any 40-acre tract not developed would revert to lessor on certain date, held not res judicata, so> as to prevent quieting of title to certain 40-acre tract by lessees, where writ of assistance was denied in former action on ground that question as . to whether or not lessees were complying with terms of lease was not presented to that court.'</p> <p>3. Mines and minerals <@=>77 — Lessor held not entitled to damages or releas® under Kansas statute.</p> <p>Where lease of ten 40-acre tracts bore date of October 24, 1918, and was to “remain in force for a term of five years from this date, and as long thereafter as oil and gas or either of them is produced,” statutes of Kansas (section 4994, Gen. St. 1915) that entitle lessor to sue for release and obtain damages, when owner of lease neglects or refuses to execute a release after having failed to comply with certain recording laws, did not entitle lessors to such relief in 1922, though lease provided for reverter of 40-acre tracts to lessors, if not developed January 1,1922.</p> <p>4. Action <@=>22 — Proceeding under Kansas statute to recover damages from lessee under oil and gas lease held action at law.</p> <p>Proceeding under Kansas statute (Gen. St. 1915, §' 4994) by lessor in oil and gas lease for damages and release of lease, after failure of lessees to comply with recording acts, held an action at law.</p> <p>5. Courts <@=>347 — Counterclaim in cross-complaint must be suit in equity, under equity rule.</p> <p>Under equity rule 30, a counterclaim cannot be set out in a cross-complaint, unless it be subject of an independent suit in equity against plaintiff; and this is true as to a cross-bill, whose substantive purpose is only to recover damages, though it in form seeks equitable relief.</p>

Woodrough, Judge. Criminal prosecutions by the United States against Tim Gallaghan and against S. E. Colwell, also known as Cy Colwell. Judgments of conviction, and defendants bring error.

Appeals from the District Court of the United States for the Southern District of Iowa; Martin J. Wade, Judge. Actions by Knox College against J. A. Gray and wife and against J. H. Anderson and others. Decrees for defendants, and plaintiff appeals.

<p>Aliens <©=>46 — 1 Iliterata alien held not to have resided in United States “eontinuously for five years.”</p> <p>An illiterate alien, who resided in the United States 9 months in 1912, 2% years between 1913 and 1916, and a little less than that period between 1921 and 1924, has not resided in the United States “continuously for five years,” within Immigration Act Feb. 5, 1917, § 3 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 4289 (4b).</p>

<p>Appeal from the District Court of the United States for the Eastern District of Pennsylvania; Oliver B. Dickinson, Judge.</p> <p>Suit by Plorace B. Taylor, for whom Isabel J. Taylor, executrix of the estate of Horace B. Taylor, was substituted, against Elmer E. Bostick. Decree of dismissal, and plaintiff appeals.</p>

<p>In Error to the District Court of the United States for the Eastern District of Illinois.</p> <p>Criminal prosecution by the United States against Louis Tucker and Joe Gould. Judgment of conviction, and defendants bring' error.</p>

Habeas corpus by Hoey Lum Qung against John P. Johnson, Commissioner of Immigration. From an order dismissing the petition, discharging the writ, and directing that relator, Hoey Lum Qung, be remanded to the custody of the United States Commissioner of Immigration at Boston, petitioner appeals.

<p>Patents <@=>25 — Patent held properly refused as for a mere aggregation of unrelated elements, not co-operating to produce unitary result.</p> <p>An application for a patent held properly rejected, as not disclosing a patentable combination, but a mere aggregation of unrelated elements not co-operating to produce a unitary result.</p>

<p>Conspiracy <©=>45 — Testimony of one employed to sell liquor as to warnings of raids given employer by defendants held competent.</p> <p>In prosecution against attorney, county sheriff, and others for conspiracy to violate National Prohibition Act, tit. 2, § 3 (Comp. St. Ann. Supp. 1923, § 10138% aa), testimony of person employed to sell liquor that, on receiving telephone call, employer would go to defendant attorney’s office, and on returning tell him to take liquor away, and that thereafter officers would come and search, and that they were never searched by state officers without receiving previous information thereof, heM competent, regardless of whether employer was co-conspirator.</p>

<p>In Error to the District Court of the United. States for the Northern District of West Virginia, at Elkins; William E. Baker, Judge.</p> <p>John Malacrauis was convicted of manufacture of intoxicating liquors, and brings error.</p>

<p>In Error to and Appeal from the District Court of the United States for the Eastern District of Louisiana; Rufus E. Foster, Judge.</p> <p>Petition by Sidney Voorhies against the United States and others. Petition denied, and petitioner appeals and brings error.</p>

McClintic, Judge. Fred Ash was found guilty under information charging unlawful transportation and possession of intoxicating liquor and maintenance of a common nuisance, and brings error.

<p>Highways @=>90 — Compensation of mortgage trustee held payable from assessment collected for bondholders.</p> <p>Where the assessment which may be made by a road district for an improvement is limited by statute, and the entire amount is required for payment of the-bonds of the district, a provision of the mortgage securing the bonds that in case of default compensation to the trustee and its counsel shall be paid “out of the proceeds of said assessment, and before the payment of the interest and principal of said bonds,” required such payment to be made out of money coming to the bondholders, and it cannot be taxed to the district as costs.</p>

<p>In Error to the District Court of the United States for the Northern District of West Virginia, at Elkins; William E. Baker, Judge.</p> <p>Criminal prosecution by the United States against Camden A. Stem-pie and Walter Mitchell. Judgment of conviction, and defendants bring error.</p>

Criminal prosecution by the United States against Ernest Hanes. On application by defendant for admission to bail. Matter certified to District Court, with request to grant application.

Suit in. admiralty for collision by the Potter Transportation Company against the steam tug Walter Franks, Walter E. Franks, claimant, and the steam tug Mary W. Potter, C. H. Chadwick & Co., claimant. From a decree dismissing the libel (299 Fed. 316), libelant appeals.

<p>In Admiralty. Libel in rem against the steamer Reina Victoria. On motion by libelant for decree of reference pro confesso.</p>

<p>Criminal prosecution by the United States against Samuel J. Broude and Isadore Broude. On petition of defendants for a writ of error to review orders.</p>

<p>Aliens <§=62 — Proprietor of saloon in other country not entitled to naturalization.</p> <p>Proprietor of saloon in city in Mexico separated from city in United. States by river, and connected by bridges over wbicb street railroads, vehicles, and pedestrians constantly pass, who sold intoxicating liquors to residents of city in United States, held not entitled to naturalization, under Naturalization Act, § 4, par. 4 (Comp. St. § 4352), in view of Const. Amend. 18, and National Prohibition Act (Comp. St. Ann. Supp. 1923, § 1013814 et seq.).</p>

<p>In Error to the District Court of the United States for the District of Oregon; Robert S. Bean, Judge.</p> <p>Action by the State of Oregon, on the relation of Harry Humfeld, against the American Surety Company of New York. Judgment for plaintiff, and defendant brings error.</p>

Van Valkenburgh, Judge. Action at law by the Hogan Milling Company against A. Weinberg, doing business as the Weinberg Grocery Company. Judgment for plaintiff, and defendant brings error.

Woodrough, Judge. Libel by the United States against one Chalmers automobile. Prom an order dismissing the libel, and returning the automobile to Tony Mangano, intervening owner, the United States brings error.

Woodrough, Judge. Libel of forfeiture by the United States, wherein Tony Mangano intervened. From an order dismissing the libel, and in favor of Mangano, the United States brings error.

Appeals from the District Court of the United States for the Southern District of New York. Libel filed by the Cornell Steamboat Company against P. Sanford Ross, Inc., and the steam tug R. J. Moran,' her engines, etc. Under the fifty-third rule in admiralty, P. Sanford Ross, Inc., petitioned in the steam tugs G. H. Dalzell, Holbrook, W. S. Holbrook,'and A. S. Sherman, and Fred B. Dalzell & Co., Inc., Holbrook Towing Line Inc., W. S. Holbrook, and the steamship Isanti.

Action by John A. Bolles, as receiver of the American Synthetic Dyes, Inc., against William H. Edwards, Collector of Internal Revenue for the Second District of New York, to recover taxes paid under protest under the Revenue Act of September 8, 1916 (39 Stat. 780). Judgment for defendant. Plaintiff appeals.

Libel in admiralty by the Berwind-White Coal Mining Company against the steamship Buckhannon, her engines, etc,; the Robinson Shipping Company, claimant. The AStna Surety & Casualty Company intervened as stipulator on claimant’s bond. From an adverse decree, libelant appeals. Libelant is a Pennsylvania corporation transacting business in New York City.

<p>In Error to the District Court of the United States for the District of Massachusetts; Elisha H. Brewster, Judge.</p> <p>Action at law by the Old Colony Trust Company against John F. Malley, Collector of Internal Revenue. Judgment for plaintiff (288 Fed. 903), and defendant brings error.</p>

Suit in equity by the King Features Syndicate against Rudolph Fleischer and Michael Baumgarten, partners as the Fleischer Toy Manufacturing Company, and the Fleischer Toy Manufacturing Company, Inc. Decree for defendants, and complainant appeals.

Court of the United States for the Southern District of New York. Suit in equity by the Frank F. Smith Hardware Company against the S. H. Pomeroy Company and S. Harris Pomeroy. From the decree, complainant appeals. Suit for infringement of letters patent No. 970,656. Decree for plaintiff, granting injunctive relief against infringement, but denying the plaintiff all profits and damages prior to the commencement of the suit, because of laches or equitable estoppel.

<p>In Error to the District Court of the United States for the Eastern District of New York. -</p> <p>Action at law by John C. Harvey against the Old Dominion Steamship Company.</p>

. In Error to the District Court of the United States for the Northern Division of the Western District of Washington; Jeremiah Neterer, Judge. •Action by the Stetson & Post Lumber Company against the Commercial Sash & Door Company. Judgment for plaintiff, and defendant brings error.

Actions by Anna Dorsey and by Joseph Dorsey against Joseph Rarocque. Judgments for plaintiffs, and defendant brings error. Anna Dorsey brought an action to recover $20,000 damages for, malicious prosecution, and the jury rendered a verdict in her favor for $2,500. Her husband, Joseph Dorsey, brought an action for damages for loss of his wife’s services, alleged to have been the result of the malicious prosecution, and the jury gave him a verdict for $250.

Suit by Charles S. Bird against Sears, Roebuck & Co. Decree for plaintiff, and defendant appeals.

Consolidated suits in admiralty by the General Commercial Company, Limited, of United States, and by the West India Company,, against the schooner Perry Setzer and the Cosmopolitan Shipping Company, Inc. Prom a decree dismissing the libels, libelants appeal. The General Commercial Company shipped a deckload of rosin in barrels, and the West India Company a consignment of oil in metal containers carried under deck.

<p>Appeal from tbe District Court of the United States for the Second Division of the Northern District of California; John S. Partridge, Judge.</p> <p>Application for habeas corpus by Hong Tong Kwong and another against John D. Nagle, as Commissioner of Immigration, Port of San Francisco. From an order delaying their application, petitioners appeal.</p>

Proceeding by the United States, on the relation of Vittorio Da Reddola, against Rohert E. Tod, Commissioner of Immigration. From an order sustaining the writ of habeas corpus, respondent appeals.

<p>Appeal from the District Court of the United States for the Western District of New York.</p> <p>Suit in admiralty by William J. Dolloff against the steam tug Charlotte; Frank F. Fix and Charles Fix, claimants. From the decree, libelant appeals.</p>

Action at law by Samuel O. Lazarus and others, partners as Lewis Lazarus & Sons, against the New York Central Railroad Company. Judgment for defendant, and plaintiffs bring error. This case was before us in 278 Fed. 900, where all the facts are recited.

Partridge, Judge. Application for habeas corpus by Wong Wing Sing and wife against John D. Nagle, as Commissioner of Immigration for the Port of San Francisco. From an order denying the writ, relators appeal.

<p>At Haw. Action by the United States against William H. Maxwell and the Globe Indemnity Company. On demurrer to answer.</p>

<p>1. Commerce <§=>27(l) — Rule as to applicability of federal Employers’ Liability Act stated.</p> <p>A case is not within federal Employers’ Liability Agt (Comp. St. §§ 8657-8665), unless it appears that plaintiff and defendant both were engaged in interstate commerce at time of injury.</p> <p>2. Commerce <@=»27(8)~-Railroad employee, mining rock for use in repair or improvement of roadbed, held not engaged in “interstate commerce.”</p> <p>Railroad employee, mining rock intended for use in repair or improvement of roadbed being used for interstate commerce, held not engaged in “interstate commerce,” within federal Employers’ Liability Act (Comp. St. §§ 8657-8665).</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.]</p>

<p>Habeas Corpus. Petition for writ by Ng Hin Fook against John P. Johnson.</p>

<p>Internal revenue <®=>8 — In computing excess profits, surplus actually undivided and employed in the business constitutes “invested capital.”</p> <p>Under Revenue Act 1918, § 326a (Comp. St. Ann. Supp. 1923, § 6336Vi si), providing that for the purposes of computing excess profits taxes the term “invested capital” for any year means “(3) paid in or earned surplus and undivided profits, not including surplus and undivided profits earned during the year,” surplus earned by a corporation during previous years, actually remaining and employed in its business, invested largely in machinery, stock in trade, etc., though by annual resolution it has been divided as profits and credited on the hooks to the individual stockholders, is not borrowed capital, but constitutes “invested capital.” [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Capital Invested.)</p>

<p>At Law. Action by Cora Seimer against the James Dickinson Farm Mortgage Company and another.</p>

<p>In Equity. Bill by P. De Ronde & Co., Inc;, against the United States Sugar Equalization Board, Incorporated. On motions for preliminary injunction and to dismiss bill.</p>

<p>At Law. Action by A. O. Jackson and Lizzie Jackson against the New York Life Insurance Company. On demurrer to complaint.</p>

<p>1. Criminal law @=>423(5) — Statements of a defendant held admissible against a codefendant.</p> <p>On trial of defendant, charged with another of possession and sale of liquor in violation of National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138% et seq.), in pursuance of a conspiracy between them, where there was other evidence of the conspiracy, statements made by his codefendant, while making sales of liquor, that defendant was his partner, and of his activities in connection with the business, held admissible.</p> <p>2. Witnesses @=>344(1) — Extrinsic testimony to particular acts not admissible to Impeach witness.</p> <p>Extrinsic testimony to particular acts is inadmissible to impeach a witness.</p> <p>3. Jury @=5131 (13) — Court has discretionary supervision over examination of jurors.</p> <p>Action of the court in requiring all general questions in examination of jurors to be addressed to the entire panel held within its discretion. ■</p>

<p>L Courts ©=489(13)— Nebraska county court held to have jurisdiction to determine who were heirs to land, notwithstanding Alien Property Custodian had taken possession.</p> <p>County court in Nebraska, in view of Rev. St. 1913, §§ 1349, 1350, 149-1— 3499, had jurisdiction to determine who were heirs to land, though Alien Property Custodian had taken possession thereof under section 9, subsee. (a), of Trading with the Enemy Act, as amended by Act June 5, 1920, Act Feb. 27, 1921, and Act Dee. 27, 1922 (Comp. St. Ann. Supp. 1923, § 3115% e), on ground that some heirs were alien enemies.</p> <p>2. Aliens ©= 13 — Title to land passed to citizen heirs, where alien heirs failed to exercise power of sale under Nebraska statute, as permitted by German treaty.</p> <p>Under Laws Neb. 1919-21, c. 142, disqualifying nonresident alien heirs from inheriting real property, title to land passes in its entirety to citizen heirs, unless alien German heirs exercised their right to sell property and withdraw proceeds within reasonable time, as permitted by treaty of 1S28 between United States and Prussia.</p> <p>3. Courts ©=2001/2 — Nebraska county court has jurisdiction to determine who are heirs, notwithstanding constitutional provision.</p> <p>Notwithstanding Const. Neb. art. 6, § 16, county court has jurisdiction to determine who are heirs to real estate, under Rev. St. Neb. 1913, §§ 1494-1499, though determination of such question involves incidental question of title.</p> <p>4. War ©= 12 — Nebraska county court decree of heirship held admissible in action against Alien Property Custodian.</p> <p>In action. against Alien Property Custodian to obtain real property in his possession under Trading with the Enemy Act, § 9, subsec. (a), as amended by Act June 5, 1920, Act Feb. 27, 1921, and Act Dec. 27, 1922 (Comp. St. Ann. Supp. 1923, § 3115%e), a decree of Nebraska county court, declaring plaintiff to be heir and entitled to land as against alien heirs, held admissible in evidence.</p> <p>5. Aliens ©=I3 — Citizen held to take as immediate heir of deceased.</p> <p>Where citizen of Nebraska died, leaving father, an alien German, as his heir to land, and such father died without exercising his right within a reasonable time to sell land and receive proceeds, as permitted under treaty of 1828 between Prussia and the United States, and leaving a number of heirs, only one of whom was a citizen of the United States, the latter took as immediate heir of citizen dying in Nebraska.</p> <p>6. War ©= 12 — Court did not err In adjudging that Alien Property Custodian pay Into court full amount of taxes against land..</p> <p>On recovery of land from Alien Property Custodian, under Trading with the Enemv Act, § 9, subsec. (a), as amended by Act June 5, 1920, Act Feb. 27,1921, and Act Dec. 27, 1922 (Comp. St. Ann. Supp. 1923, § 3ll5%e), the District Court did rot err in adjudging that defendant pay into court full amount of taxes against land, since direction to pay into court was tantamount to his paying, as required by Trading with the Enemy Act, as amended by Act July 1, 1918 (Comp. St. Ann. Supp. 1919, § 3115 %ff£).</p> <p>7. United States ©=147 — Order to Alien Property Custodian to fake costs out of funds not adjudication of costs against United States.</p> <p>Adjudging costs in favor of one suing Alien Property Custodian and Treasurer of United States for return of property under Trading with the Enemy Act, § 9, subsec. (a), as amended by Act June 5, 1920, Act Feb. 27, 3921, and Act Dec. 27, 1922 (Comp. St. Ann. Snpp. 1923, § 3115%e), order being to pay out of funds involved, was not an adjudication of costs against United States.</p> <p>Stone, Circuit Judge, dissenting.</p>

Appeals from the District Court of the United States for the Eastern Division of the Northern District of Illinois. Suit in equity by Eleanor M. Ruysdael against Olof N. Tevander. From a decree on accounting, both parties appeal.

<p>1. Bankruptcy <§=440 — Order adjudging mortgage void reviewable by appeal.</p> <p>An order adjudging a mortgage held by a creditor void as against the trustee is reviewable by appeal.</p> <p>2. Fraudulent conveyances <§= 15 — Conveyance through dummy not a badge of fraud.</p> <p>That real estate transactions are conducted through a dummy is not a badge of fraud, which puts a hank purchasing a mortgage executed to the dummy on inquiry as to the good faith of the transaction, though it knows that mortgagee is not acting for himself, hut for an undisclosed principal.</p> <p>3. Notice <§=6 — Failure to make inquiry, unless willful or fraudulent, will not impute notice.</p> <p>To impute notice of facts which one 'might have learned by inquiry, there must have been a fraudulent turning away from a knowledge of facts, which the res gestae would suggest to a prudent mind, and a mere want of caution is not sufficient.</p> <p>4. Fraudulent conveyances <§=283 — Want of bona tides of purchaser an affirmative defense.</p> <p>Want of bona tides of the purchaser of mortgages held an affirmative defense, the burden of which vested on defendant.</p> <p>5. Evidence <§=94 — Burden of proof on Issue never shifts.</p> <p>The burden of proof never shifts from the party having the affirmative of an issue, though during the progress of the proceeding the burden of going forward with the evidence to rebut a prima facie case may shift.</p> <p>6. Bankruptcy <§=101 — Filing of petition is caveat only to those who may thereafter acquire interest in property.</p> <p>The statement that the filing of a petition in bankruptcy is “a caveat to all the world” applies only to parties who have no substantial claim of a title to property of the bankrupt, or of a lien thereon, when the petition is filed.</p> <p>7. Bankruptcy <§=101 — Filing of petition cannot affect rights of subsequent purchaser of prior mortgage.</p> <p>The filing of a petition in bankruptcy against a mortgagor did not affect the rights of a subsequent purchaser of mortgages executed and recorded more than a year prior to the bankruptcy.</p> <p>8. Courts <§=>371 (3) — Federal courts are governed by local law.</p> <p>Whether a conveyance will be held fraudulent as to creditors by tne federal courts will be determined by the local law.</p> <p>f). Fraudulent conveyances <§=57(l), 162(1) — Insolvency alone does not avoid conveyance; must have been common fraudulent intent.</p> <p>That a grantor is insolvent at the time of the transfer is not of itself a ground for setting it aside; hut there must have been a fraudulent intent common to both seller and purchaser.,</p> <p>10. Fraudulent conveyances <§=57(l) — Conveyance by insolvent fraudulent as to existing creditors, unless for valuable consideration.</p> <p>Insolvency of the grantor at the time of his conveyance renders it fraudulent as to existing creditors, if not based on a valuable consideration.</p> <p>11. Mortgages <§=257 — Purchaser without notice from purchaser with notice is protected as bona fide purchaser.</p> <p>A second purchaser of a mortgage for value without notice of defenses, from a first purchaser who is charged with notice, is a bona fide purchaser and entitled to protection.</p> <p>12. Fraudulent conveyances <§=155, 159(1) — Fraudulent intent of grantor will not invalidate conveyance, unless grantee had actual or constructive notice of such intent; grantee with notice not protected.</p> <p>A conveyance for a váluahle and adequate consideration cannot he invalidated by creditors, even if the grantor had a fraudulent intent, if the grantee had no actual notice of such intent and no notice of facts calculated to put him on inquiry, which would, have led him to a discovery of the intent; but, if he had notice of such intent at the time, the payment of an adequate consideration will not validate it.</p> <p>13. Fraudulent conveyances <§=165, 196 — Bona fide purchaser before creditors have moved is protected.</p> <p>A bona fide purchaser for value is protected, whether he purchases from a fraudulent grantor or fraudulent grantee, if he acquires title before creditors have taken any steps to subject the property or set aside the fraudulent conveyance.</p> <p>14. Fraud <§=58(1) — Clear and convincing proof required to establish charge of fraud.</p> <p>A stricter standard of proof than is necessary in ordinary civil cases is required to establish a charge of fraud, commonly stated as “clear and convincing proof.”</p> <p>15. Attorney and client <§=404 — Notice to attorney not imputed to client, where acquired in serving another client.</p> <p>The rule that notice to an attorney is imputed to his client is not applicable, where the knowledge of the attorney was acquired while acting for a different client and could not be communicated to another without a breach of professional duty.</p> <p>16. Fraudulent conveyances <§=81 — Assignment to secure future advances valid.</p> <p>An assignment of a mortgage to a bank to secure future advances to be made to the mortgagee is valid to the extent of the advances so made, as against creditors of the mortgagor, and its validity is not impaired by the fact that it does not show on its face the real character of the transaction.</p>

<p>In Error to the District Court of the United States for the Eastern District of Missouri.</p> <p>Tony Bernacco and another were convicted of a crime and sentenced to fine and imprisonment. On motion for supersedeas and application for bail. Application for bail was denied by trial court, and defendants bring error.</p>

<p>In Admiralty. Libel by Edward Brown against the Steamship Cedric, in which the Oceanic Steam Navigation Company, Limited, claimed the steamship.</p>

<p>In Equity. Suit by the Line Material Company against the Brady Electric & Manufacturing Company.</p>

<p>1. Insurance <©=>586 — Rule as to vested rights of beneficiary stated.</p> <p>Ordinarily, where policy permits change of beneficiary at insured’s will, the beneficiary during insured’s life obtains no vested interest in insurance; but, on insured’s death without change of beneficiary, the beneficiary’s rights become vested, and may not be divested nor diminished in value by any act of insurer or subsequent change of law.</p> <p>2. Army and navy <©=5511/2, New, vol. I2A Key-No. Series — War risk insurance policy issued subject to future laws.</p> <p>War risk insurance policy, issued under War Risk Insurance Act Oct. 6,1917 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 514a et seq.), was subject to future laws made in relation thereto.</p> <p>3. Constitutional law <©=593(1) — «Eminent Domain <©=>2(0 — Army and navy <©=>5l'/2, New, vol. I2A Key-No. Series — Improperly designated beneficiary entitled to share in proceeds of war risk insurance on amendment of act subsequent to insured’s death.; amendment held not to violate Fifth Amendment.</p> <p>Where insured by will designated aunt as beneficiary of one-half of war risk insurance, and died prior to enactment of Act Dee. 24, 1919, amending War Risk Insurance Act Oct. 6, 1917 (Comp. St.. Ann. Supp. 1923, § 514aa et seq.), so as to permit designation of aunt as beneficiary ' after government bad commenced making payments to his mother, designated as beneficiary in policy, aunt after such amendment was entitled to one-half of the unpaid installments, and 1919 amendment, so construed, does not violate Const. Amend. 5, forbidding taking private property without just compensation, since a citizen has no vested rights in statutory privileges.</p> <p>4. Constitutional law <©=>186 — Property may be taken from person by retroactive legislation.</p> <p>Property may be taken from a person by retroactive legislation, which, were it not for such legislation, he could have held as his own.</p>

In Equity. Suit by the Kennebec Box Company, Inc., against the O.. S. Richards Corporation. On motion by John B. Johnston, receiver, for an order establishing priority of receiver’s debts over claims of United States for taxes.

<p>1. Receivers <@=>92 — Receiver entitled to continue business for reasonable time before being surcharged with losses.</p> <p>A.receiver is entitled to operate the business of defendant for a reasonable time after his appointment before being chargeable personally with losses from its continued operation.</p> <p>2. Receivers <@=>92 — ¿Receiver’s account may be surcharged with payments made in knowingly continuing a losing business.</p> <p>» The accounts of a receiver should be surcharged with payments to creditors made by him in continuing the business after it became evident that it could only be conducted at a loss, and that the funds of the estate were insufficient to pay all receivership creditors.</p> <p>3. Receivers <@=>151 — Court cannot require return of payments received from receiver in usual course of business.</p> <p>The court has no power to require the return by creditors of a receiver of payments received from him as a condition to their further participation in the assets, though the payments were unauthorized, where so far as appears they did not know such fact, but received the payments in usual course of business.</p> <p>4. Receivers <@=> 193 — Receiver, surcharged with losses of business, should be credited with profits from whatever source received.</p> <p>A receiver, surcharged with losses incurred in operating the business after it should, have been discontinued, is entitled to credit for profits made by him during the time in handling the receivership estate, though separate from the conduct of the business.</p>

Appeals from the District Court of the United States for the District of New Jersey; Joseph L,. Bodine, Judge. In the matter of the steamship Culgoa. From decrees in libels in admiralty favorable to the W. & A. Fletcher Company to Michael McAndrew, to the American Bureau of Shipping, to Baker, Carver & Morrell, Inc., and to the Dyer Supply Company, the United States appeals.

Stanley Webster, Judge. Action at law by Margaret M. Talbot, administratrix of the estate of Matthew Mahaney, deceased, against the Chicago, Milwaukee & St. Paul Railway Company. Judgment for plaintiff, and defendant brings error.

Lynch, Judge. Action at law by Joseph J. Effinger, administrator of the estate of Thomas J. Effinger, deceased, against the Philadelphia & Reading Railway Company. Judgment for plaintiff, and defendant brings error.

<p>Petition to Revise in a Matter of Raw an Order of the District Court of the United States for the Southern Division of the Northern District of California; John S. Partridge and George M. Bourquin, Judges.</p> <p>In the matter of the Pacific Alloy & Steel Company, bankrupt; Milton Bernard, trustee. On petition by the Great Western Power Company of California to revise an order denying its motion to vacate adjudication.</p>

<p>At Law. Action by Sarah H. Haviland against the Atlantic Coast Line Railroad Company. On demurrer to plea, raising question of jurisdiction.</p>

<p>1. Courts <§=274 — Jurisdiction of action for personal injury; "principal office” of corporation.</p> <p>In Merchant Marine Act 1920, § 33 (Comp. St. Ann. Supp. 1923, § 8337a), providing that jurisdiction of an action by a seaman for personal injury “shall be under the court of the district in which the defendant employer resides or in which his principal office is located,” the term “principal office” is not used as synonymous with “principal place of business,” but in case of a corporation means its head office, the place where the principal officers generally transact business and to which reports are made and from which orders emanate.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Principal Office.]</p> <p>2. Courts <§=274 — Jurisdiction of action against Fleet Corporation In District of Columbia.</p> <p>For the purposes of an action by a seaman for personal injury against the Emergency Fleet Corporation, under Merchant Marine Act 1920, § 33 (Comp. St. Ann. Supp. 1923, § 8337a), which gives jurisdiction to the court of the district in which the defendant resides or has its principal office, the defendant resides and has its principal office in the District of Columbia.</p> <p>3. Removal of causes <§='112 — In action for injury, objection to jurisdiction not waived by removal of. cause.</p> <p>While the provision of Merchant Marine Act 1920, § 33 (Comp. St. Ann. Supp. 1923, § 8337a), requiring an action by a seaman for injury to be brought in the district in which defendant resides or has his principal' office, relates to venue only, and may be waived by defendant, and is waived by a general appearance, it is not waived by the removal of the cause by defendant from a state to the federal court.</p> <p>4. Courts <§=268 — “Jurisdiction” of action by seaman for personal injury.</p> <p>Under Merchant Marine Act 1920, § 33 (Comp. St. Ann. Supp. 1923, § 8337a), providing that jurisdiction of an action by a seaman for personal injury shall be under the court of the district in which the defendant employer resides or in which his principal office is located, the word “jurisdiction” does not relate to the general jurisdiction of the court, but to venue only.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Jurisdiction (of Courts).]</p>

<p>In Admiralty. Libels by H. P. Hapsen and others against the motor ship Donna Lane, her engine, tackle, apparel, and furniture, claimed by the Donna Lane Motor Ship Corporation.</p>

<p>!. Patents @=>328 — 1,339,462, for process of protecting shoes from soiling during manufacture, held void for want of invention and prior use.</p> <p>The Dionne patent, No. 1,339,462, for process of protecting shoes from soiling during manufacture, held void for want of invention, being in effect for tbe application of “white dope,” long in use for the purpose, to white shoes, to protect them from soiling during manufacture by means of an air brush, also old in use for similar purposes, instead of by an ordinary brush or sponge; also held void for prior use by others.</p> <p>2. Patents @=>-27(1) — Application of old process to new subject, without change of function, is not invention.</p> <p>The application of an old process to a new use or subject, without any substantial change of function, and in a way which would be obvious to any mechanic, is not patentable invention.</p>

<p>Admiralty <§=>32 — Court held not to have acquired jurisdiction over vesse?.</p> <p>The court held, not to have acquired jurisdiction over a vessel which, when the libel was filed, was without the district, and was subsequently brought within the district without consent of the marshal of another district, who had her in custody.</p> <p>(gssFor other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Error from the District Court of the United States for the Eastern Division of the Northern District of Ohio; Paul Jones, Judge.</p>

<p>Appeal from the District Court of the United States for the District of New Jersey; John Rellstab, District Judge. Suit in equity by the United States against Isaac Ñutes. Decree for the United States, and defendant appeals.</p>