Volume 201 — Federal Reporter

Appeal .from the District Court of the United States for the Northern District of Florida; William B. Sheppard, Judge. Action by the Southern Hardware & Supply Company against M. E. Clark, trustee in bankruptcy of the estate of Benn & Roberts, bankrupts. From a decree denying relief, plaintiff appeals.

<p>1. Sales (§ 354*) — Affidavit of Defense — Sufficiency.</p> <p>An affidavit of defense in an action on a contract to recover the purchase price of certain engines built and installed by plaintiff for defendant construed, and held, under the rules of the Pennsylvania practice, to fairly put in issue the averments of plaintiff’s statement, so as to require evidence in support of the same and entitle defendant to introduce evidence tending to show the failure of the engines to meet the guaranties of the contract, and that for that reason they were not accepted, but were rejected by defendant after plaintiff had been given ample time and opportunity to make them comply therewith.</p> <p>[Ed. Note.- — For other eases, see Sales, Cent. Dig. §§ 1005-1024; Dec. Dig. § 354.*]</p> <p>2. Appeal and Error (§ 1041*) — Pleading (§ 268*) — Amendments—'When Allowable.</p> <p>Under the liberal rule as to amendments prevailing in the federal courts, and under the Pennsylvania practice, on the ruling of a trial judge that an affidavit of defense was insufficient to put in issue an averment of plaintiff’s statement of claim, so as ¡to entitle defendant to introduce evidence thereon, defendant should be permitted to amend his affidavit, where such amendment would not work injustice to plaintiff, but would be conducive to a fair trial of the action on the merits, and the denial of such permission was prejudicial error.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 4106-4109; Dec. Dig. § 1041;* Pleading, Cent. Dig. §§ 809, 810; Dec. Dig. § 268.*]</p>

Dyer, Judge. Contempt proceedings by the Board of Trade of the City of Chicago and others against the Merchants’ Stock & Grain Company and others. From a decree convicting defendants of a criminal contempt and assessing fines directed to be paid one-fourth to the government'and three-fourths to the complainants, defendants bring error.

Petition to Revise and Appeal from an Order of the District'Court .of the United States for the Western District of Kentucky. In the matter of T. J. Atkins, bankrupt. As to an order in favor Of the Globe Bank & Trust Company of Paducah, Ky., and others, Arthur Y. Martin, trustee, files petition to revise, and also appeals therefrom. On motions to dismiss petition and appeal, for a rehearing (of 193 Fed. 841, 113 C. C. A. 627), and for entry of final decree.

<p>Appeal from the Circuit Court of the United States for the District of Wyoming; John A. Riner, Judge.</p> <p>Suit in equity by the Union Pacific Railroad Company against Thomas Cottle, Treasurer of Sweetwater County, Wyo., and others. Decree for complainant, and defendants appeal.</p>

. Suit by Clara J. Gibbs,, non compos mentis, by Albert L,. Gibbs, her guardian, against Alger, Smith & Co. and others. From a decree of dismissal, complainant appeals.

<p>In Error to the District Court of the United States for the Eastern District of Pennsylvania.</p> <p>Action by Ellen Connelley against the Pennsylvania Railroad Company. There was a judgment for plaintiff, and defendant brings error.</p>

Appeals from the District Court of the United States for the Eastern District of New York; Thomas I. Chatfield, Judge. Suits in admiralty by Jared Griffing, as owner of the schooner Daylight, and by the President and Directors of the Insurance Company of North America, against the steam tug Anna W. Decrees for libel (181 Fed. 604), and the claimant, the National Dredging Company of Wilmington, Delaware, appeals.

<p>Appeals from the District Court of the United States for the Southern District of New York; C. M. Hough, Judge.</p> <p>Suits by the Motion Picture Patents Company against William Steiner and others and against the Yankee Film Company. From so much of a final decree dismissing the bills in each case as awarded an additional allowance of $150 costs in each case (192 Fed. 134), complainant appeals.</p> <p>The appeals in the above-entitled actions are taken for the sole purpose of reviewing final decrees dismissing the bills with costs and an additional sum of $150 in each case. The decrees contain the following: “Ordered, adjudged and decreed, that the bill of complaint herein be and the same hereby is dismissed with costs to defendant to he taxed, and in addition thereto there is hereby allowed to defendant the sum of one hundred and fifty dollars as excess costs and expenses, and that the defendant have judgment and execution therefor.”</p> <p>The assignments of error challenge the propriety of the decrees in one particular only. It ‘is contended that the court erred in allowing the defendants $150 -in each case “as excess costs and expenses,” there being no statutory authority for such an allowance.</p>

Petitions to Revise Orders of the District Court of the United States for the Eastern District of New York, in Bankruptcy; Julius M. Mayer, Judge. In the matter of the bankruptcy of the Ironclad Manufacturing Company. Petitions by Elizabeth C. Seaman and the American Steel Barrel Company to revise orders of the District Court. This cause comes here upon petitions to revise three orders of the District Court, Eastern District of New York.

Action at law by Birdie Lynch against the Chicago & South Haven Steamship Company. Judgment for plaintiff, and defendant brings error. The plaintiff and her mother on July 22, 1909, purchased excursion tickets at Chicago for a round trip to South Haven and return. They paid $1 each for two tickets, and this entitled them to passage on the steamer, but did not include either meals, staterooms, or berths.

<p>Indians (§ 13*) — Rands—Descent—Statutory Provisions.</p> <p>Under an allotment in November, 1902, to a Creek Indian, who died in November, 1899, and was duly enrolled, a deed to his heirs passes title, under Act Cong. June 30, 1902, c. 1323, § 6, 32 Stat. 501, providing for the descent and distribution of the property of Creek Indians according to Mansf. Dig. Ark. §§ 2522-25-15, to the allottee’s brother, and not, under Act March 1, 1901, c. 670, § 28, 31 Stat. 869, providing, for descent and distribution according to the laws of the Creek Nation, to his father; no title having vested in severalty till the allotment was made, after the passage of the act of 1902.</p> <p>[Ed. Note. — For other cases, see Indians, Cent. Dig. § 30; Dec. Dig. § 13.*]</p>

Action by P. Tillinghast, as receiver of the First National Bank of Ironwood, Mich., against Charles R. Clark. Judgment for plaintiff, and defendant brings error. Defendant in error, hereinafter termed plaintiff, filed his complaint against plaintiff in error, termed herein defendant, in said court on October 15, 1909, to recover, as such receiver, upon a certain note of defendant, dated October 31, 1908, for the sum of $5,000 and interest.

<p>In Error to the Circuit Court of the United States for the Western District of Wisconsin.</p> <p>Action at.law by P. Tillinghast, as receiver of the First National Bank of Ironwood) Mich., against Charles R. Clark. Plaintiff brings error.</p>

Carpenter, Judge. In the matter of the Tengwall Company, bankrupt. From an order sustaining objections to his claim as a secured debt, Edward H. Fallows, trustee, appeals.

<p>Petition to Revise Order of the District Court of the United States for the Southern District of New York; Charles M. Hough, Judge.</p> <p>Petition by Robert C. Morris, as trustee in bankruptcy, to revise an order denying a petition to expunge the claim of Weichert & Gardiner, a corporation, against Louis Frazin and another, bankrupts.</p> <p>TKis causé comes here on petition to revise an order of the District Court, Southern District of New York, denying a petition of the trustee . to expunge the claim of the corporation Weichert & Gardiner, a creditor of the bankrupts, for $28,493.63. The objection of the trustee to the claim is based upon the contention that within four months preceding the filing of the petition a preferential payment was made by the bankrupts to Weichert & Gardiner, and that its claim should be expunged, unless the amount of such payment be returned to the estate.</p>

Carpenter, Judge. Suit in admiralty by the Michigan, Indiana & Illinois Dine, owner of the steamer Marion, against the City of Chicago. Decree for libel-ant, and respondent appeals. Appellee, sole owner of the steamer Marion, filed its libel against appellant on December 16, 1910, to recover damages -suffered by it, by reason of a collision of the said steamer with the Lake Street bridge, Chicago, 111., on March 31, 1910.

<p>1. Internal Revenue (§ 23*) — Distiller’s Bond — Taxes.</p> <p>Where a distiller’s bond was conditioned that be would in all respects faithfully comply with all the provisions of law and regulations in relation to the duties and business of distilling brandy, etc., it covered a liability for taxes assessed on spirits distilled.</p> <p>[Ed. Note. — For other cases, see Internal Revenue, Cent. Dig. §§ 62-67; Dec. Dig. § 23.*]</p> <p>2. Internal Revenue (§ 23*) — Bond oe Distiller — Tax Assessment — Prima Facie Evidence.</p> <p>An internal revenue tax, assessed by the Commissioner of Internal Rev.enue on liquors distilled, was prima facie evidence of the amount due against both the distiller and bis surety.</p> <p>[Ed. Note. — For other cases, see Internal Revenue, Cent. Dig. §§ 62-67; Dec. Dig. § 23.*]</p>

Lacombe, Circuit Judge, dissenting. Petition for Revision of Proceedings of the District Court of the United States for the Northern District of New York; George W. Ray, Judge. In the matter of bankruptcy proceedings of Augustus S. Downing.

L. Sanborn, Judge. Action by Benjamin Finch and another, doing business as Finch Brothers, against the United States of America. Judgment ¡for plaintiffs, and defendant brings error.

Petition to Revise Order of the District Court of the United States for the Southern District of New York; Julius M. Mayer, Judge. In the matter of bankruptcy proceedings against Joseph Noethen, individually and as surviving partner of the firm of Hyler & Noethen, bankrupt. On petition of August Luchow to revise an order (195 Fed. 573) denying the claim of petitioner as mortgagee of the bankrupt stock and goods.

Hazel, Judge. Action by the Nótaseme Hosiery Company against Isidore Straus and others to restrain alleged infringement of the trade mark and for unfair competition. From a decree for defendants, complainant appeals.

<p>Patents (§ 328*) — Infringement—Feei Crusher.</p> <p>The Gibson patent, No. 923,966, for a feed crusher, in view of the narrow construction required by the prior art, held not infringed by the machine of the Bell patent, No. 796,255.</p>

<p>In Equity. Suit by F. F. Slocomb & Co., Incorporated, against the A. C. Layman Machine Company. On motion to require witness to answer certain questions.</p>

In the matter of Henry H. Lipphart, bankrupt. Heard on motions by the creditor to vacate the order of adjudication and for dismissal of the petition in bankruptcy on the ground of no jurisdiction, and by the bankrupt to amend his voluntary petition.

Petition for writ of habeas corpus, on relation of Pascual Orozco, Sr., to secure his release from custody of the military authorities of the United States pending investigation to determine whether he could be held for violation of the neutrality laws between the United States and Mexico. The relator, Pascual Orozco, Sr., has presented to the court a petition praying the issuance of a writ of habeas corpus, and bis release from custody. He is now confined at Ft.

<p>Petition by David de la Fuente for writ of habeas corpus to obtain his release from imprisonment by the military authorities of the United States for the alleged breach of the neutrality laws. Writ granted, and relator discharged on entering into a recognizance with a surety in the sum of $2,500.</p>

<p>1. Courts (§ 282*) — Jurisdiction of Federal Courts — Federal Question.</p> <p>A federal court has jurisdiction of a suit to enjoin the enforcement of a municipal ordinance alleged to impair the obligation of a prior contract made by the city and which was passed under assumed and asserted legislative authority.</p> <p>[Ed. Note. — 'Por other cases, see Courts, Cent. Dig. §§ 820-824; Dec. Dec. Dig. § 282.*</p> <p>Jurisdiction of federal courts in cases involving federal questions, see notes to Bailey v. Mosher, 11 C. C. A. 308; Montana Ore-Purchasing Co. v. Boston & M. Consol. Copper -fc Silver Mining Co., 35 C. C. A. 7; Eamhart v. Switzler, 105 C. O. A. 262.]</p> <p>2. Carriers (§ 12*) — Regulation of Rates — -Powers.</p> <p>The right to reasonably regulate rates to be charged by a public service corporation, as a street railroad company, is a governmental power continuing in its nature, and, while it may be suspended in a given case by a contract for a definite time not unreasonably long, it can only be done by words of positive grant or language equivalent thereto, and then only by the supreme legislative body of the state unless authority is clearly delegated by such body.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent Dig. §§ 7-20; Dec. Dig. § 12.*] -</p> <p>8. Carriers (§ 12*) — Regulation of Rates — Powers of Cinr.</p> <p>‘ Under the provision of the charter of the city of Portland, Or., authorizing the council to grant for a limited time specific franchises in the streets, etc., but providing that “at all times the power and right reasonably to regulate in the public interest the exercise of the franchise or right so granted shall remain and be vested in the council and said power and right cannot be divested or granted,” the further provision, that every grant of such a franchise which provides for the charging of rates, fares, and charges for services rendered or performed by the grantee shall fix a maximum rate which may be charged during the life of such franchise, does not vest the city with power to contract away its right to regulate the fares which may be charged by a street railroad company.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 7-20; Dec. Dig. § 12.*]</p> <p>4. Constitutional Law (§ 134*) — Obligation of Contracts — Contracts of Municipality — Franchise to Use Streets.</p> <p>The grant by a municipality of the right to use streets for a reasonable time for street railroad purposes becomes, when accepted by the grantee and the railway is built, a contract which neither the state nor any of its agencies may impair.</p> <p>[Ed. Note. — F'or other cases, see Constitutional Law, Cent. Dig. § 344; Dec. Dig. § 134.*]</p> <p>5. Injunction (§ 112*) — Restraining Enforcement of Ordinance — Timé fob Action.</p> <p>A federal court has jurisdiction of a suit to enjoin the enforcement of an ordinance which impairs the obligation of a contract without waiting until proceedings are instituted for its enforcement.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. § 197; Dee. Dig. § 112.*]</p> <p>6. Carriers (§§ 2, 12*) — Constitutional Law (§ 298*) — Ordinance Regulating Pares — Constitutionality.</p> <p>A city ordinance requiring street railroad companies operating their lines under franchises granted by the city to provide registers in each car on which the conductor shall ring up the fares collected, providing that, “when the number of fares received equals the seating capacity of the car of two feet for each passenger,” the conductor shall only be allowed to charge three cents for each passenger admitted, instead o-f the regular fare of five cents, that any ear shall receive passengers to the ■extent of the standing room therein, and that for its willful violation for the period of one month the council may declare the franchise of the eompány forfeited and remove its tracks from the streets, without providing for any hearing or judicial determination of its rights, is unconstitutional and void not only as an impairment of the contract made by a company’s franchise and' depriving it of its property without due process of law, but as uncertain and unreasonable.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 4, 5, 7-20; Dee. Dig. §§ 2, 12;* Constitutional Law, Cent. Dig. § 847; Dec. Dig. § 298.*]-</p>

In Admiralty. Suit by John S. O’Keefe and others against the Staples Coal Company. On exceptions of County of Bristol to the libel and to petition filed by respondent under admiralty rule 59.

In Admiralty. Suit by John S. O’Keefe and others, owners of the schooner Sarah L. Thompson, against the Staples Coal Company, owner of the tug'Cohannet; the County of Bristol, Mass., being impleaded.

In Admiralty. Suit by John S. O’Keefe and others, owners of the schooner Sarah D. Thompson, against the Staples Coal Company, owner of the tug Cohannet; the County of Bristol, Mass., being impleaded.

At Law. Action by Steve Kusnir against the Pressed Steel Car Company. Verdict for plaintiff for $8,500 damages, and defendant moves to set aside the verdict as against the evidence, and as excessive, and for a new trial on the minutes.

<p>In Equity. Suit by Nathaniel Parker, trustee in bankruptcy of Hugh Owens, against D. C. Sherman.</p>

In Bankruptcy. In the matter of bankruptcy proceedings of the Cantelo Manufacturing Company. On petition by Howard R. Ives, as trustee, against the bankrupt and John S. Cántelo to obtain a transfer of certain patents alleged to -belong to the corporation. A decree in favor of petitioner was rendered by the referee, and Cántelo applies for review.

<p>1. Bankruptcy (§ 143*) — Adjudication—Effect—Transfer of Property.</p> <p>Bankr. Act July 1, 1898, c. 541, § 6, 30 Stat. 548 (U. S. Comp. St. 1901, p. 3424), provides that the act shall not affect the allowance to bankrupts of the exemptions prescribed by the state laws in force at the time of the filing of the petition in the state Wherein they have had their domicile for six months or the greater portion thereof immediately preceding the filing of the petition, and section 70a declares that the trustee of the bankrupt’s estate shall be vested by operation of law with the title of the bankrupt as of the date he was adjudged a bankrupt, except in so far as relates to property which is exempt, to all property which prior to the fil•ing of the petition he could by any means transfer or which might have been levied on and sold under judicial process against him. Held that, under such sections, the trustee is vested with the bankrupt’s title to all property which either could have been transferred, or which might have been levied on and sold under judicial process, except property exempt to the bankrupt under the laws of the state.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 194, 201, 202, 213-217, 223, 224; Dec. Dig. § 143.*]</p> <p>2. Bankruptcy (§ 143*) — Title of Trustee — Property Not Subject to Levy.</p> <p>Under Bankr. Act July 1, 1898, c. 541, § 70a, 30 Stat. 565 (ü. S. Comp. St. 1901, p. 3451), providing that the bankrupt’s trustee shall be vested by operation of law with the bankrupt’s title to all nonexempt property which prior to the filing of the petition he could by any means have transferred, or which might have been levied on and sold under judicial process against him, the mere fact that property which is not exempt under the state law could not have been levied on and sold at the date of the adjudication would not prevent the bankrupt’s title from passing to the trustee if the bankrupt by any means could have transferred the title.</p> <p>[Ed. Note.- — For other cases, see Bankruptcy, Cent. Dig. §§ 194, 201, 202, 213-217, 223, 224; Dec. Dig. § 143.*]</p> <p>3. Bankruptcy (§ 396*) — “Exemptions”—State Laws.</p> <p>Shannon’s Code Tenn. .§ 4764, provides that a levy may be made on a growing crop,, but not until November 15th alter the crop is matured, and then only subject to the landlord’s lien, if any, but, if the crop owner absconds, conceals himself, or leaves the country, an attachment or execution may be levied on the standing crop at any time. JETeld that, since an exemption is defined to be a right given by law to a debtor to retain a portion of his property without its being liable to execution at the suit of a creditor or to a distress for rent, such section does not render .a debtor’s interest in a growing crop exempt property, and hence a bankrupt was not entitled to have it set aside to him as property exempt under the state law.</p> <p>[Ed. Note. — For other.eases, see Bankruptcy, Cent. Dig. §§ 659-668, 670; Dee. Dig. § 396.*</p> <p>For other definitions, see Words and Phrases, vol. 3, pp. 2579-2581.]</p> <p>4. Bankruptcy (§ 143*) — Assets—Property Passing to Trustee — Growing Crop.</p> <p>Since a bankrupt’s interest in a growing crop in Tennessee is not exempt property, but is an interest which he may sell or mortgage prior to the time of levy, it constitutes property passing to the -trustee on adjudication as provided by Bankr. Act July 1, 1898, c. 541, § 70a, 30 Stat. 565 (U. S. Comp. St. 1901, p. 3451).</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 194, 201, 202, 213-217, 223, 224; Dec. Dig. § 143.*]</p>

In Bankruptcy. In the matter of bankruptcy proceedings of Schwartz & Co. On a motion to confirm a referee’s report recommending that the discharge be denied.

In Bankruptcy. In the matter of bankruptcy proceedings against Abe Lipman. On petition of Annie Solotist for an order requiring an ancillary receiver to surrender certain goods, wares, and merchandise purchased by her from the bankrupt, or that she be permitted to commence an action against such receiver to replevin the same. The petition having been referred to a master who reported in favor of dismissal thereof, petitioner brings exceptions.

In Admiralty. Suit for collision by J. S. Winslow & Co., owners of the schooner Jane Palmer, against the Susquehanna Coal Company, owner of the barge Shamokin, and the Seaboard Transportation Company, owner of the barge Occidental.

In Bankruptcy. In the matter of bankruptcy proceedings of Jacob Berkman and others. On petition of Samuel O. Reinstein, trustee, to recover certain alleged withheld property.

<p>Copyrights (§ 60*) — Infringement.</p> <p>A booklet entitled “Opera Stories,” by which the author sought to give a mere fragmentary and superficial idea of the plot and characters of various operas, each scene being covered by a single paragraph and taken from descriptions other than the operas themselves, was not an infringement of the copyrights on the librettos.</p> <p>[Ed. Note. — For other oases, see Copyrights, Cent. Dig. § 56; Deo. Dig. § 60.*]</p>

<p>Copyrights (§ 60*) — Infringement—Operas—“Make Any Other Version Thereof.”</p> <p>Copyright Act March 4, 1909, e. 320, § 1, 35 Stat. 1075 (ü. S. Comp. St. Supp. 1911, p. 1472), gives to the owner of a copyright the exclusive right to translate the copyrighted work into other languages or dialects, or to make any other version thereof, if it be a literary work, etc. Held, that the words “make any other version thereof” were not to be strictly construed, so as to include mere abridgments or versions of copyrighted plays and operas, and hence a booklet, giving a mere fragmentary description of the various scenes of operas, and entitled “Opera Stories,” not taken from the librettos, was not an infringement of the copyrights on the librettos.</p> <p>[Ed. Note. — Eor other cases, see Copyrights, Cent. Dig. § 56; Dec. Dig. § 60.*]</p>

<p>Action by William A. Hansford against the Stone-Ordean-Wells Company." On motion to remand case to the state court.</p>

<p>In Bankruptcy. In the matter of bankruptcy proceedings of Irving Cohen. On application for the bankrupt’s discharge.</p>

<p>Shipping (§ 209*) — Limitation op Liability — Right to Remedy.</p> <p>The right of a vessel owner to maintain a suit for limitation of liability is not defeated by the fact that the only claims on which suit has been brought do not amount to the admitted value of the vessel, where there is a probability that there may he others.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 646-662; Dec. Dig. § 209.*</p> <p>Limitation of owner’s liability, see note to The Longfellow, 45 C. C. A. 387.]</p>

<p>Libel of information by the United States against Twelve Bottles of Whisky. H. Coger interposed a claim.</p>

<p>In Error to the District Court of the United States for the Western District of Texas; Thomas S. Maxey, Judge.</p> <p>Action by Victoria Whitmer, administratrix, against the El Paso & Southwestern Company. There was a judgment for defendant, and plaintiff brings error.</p>

Bean, Judge. Suit in equity by the Eastern Oregon Land Company against the Willow River Land & Irrigation Company. Decree for defendant (187 Fed. 466), and complainant appeals.

Petition by the United States to condemn certain real estate at Pearl Harbor, on the Island of Oahu, in the territory and district of Hawaii, for the uses and purposes of the United States. Award of $10,000 to the owners of the land.

Appeal and Cross-Appeal from the District Court of the United States for the Northern District of Georgia; William T. Newman, Judge. Controversy between Ruth Kramer and Ernest W. Kramer and Charles A. Lyle, as executor of the will of Ernest G. Kramer, deceased, concerning the construction of the will. From a decree construing the will (Kramer v. Lyle, 197 Fed. 618) Ruth Kramer appeals, and Ernest W. Kramer prosecutes a cross-appeal.

<p>1. Criminal Law (§ 101*) — Courts—Jurisdiction.</p> <p>Under. Enabling Act Okl. June 10, 1906, c. 3335, § 16, 34 Stat. 276, as amended by Act March 4, 1907, c. 2911, § 1, 34 Stat. 1286, providing that prosecutions, pending in the district courts of the territory of Oklahoma or in the United States courts in the Indian Territory on the admission of • Oklahoma as a state, shall he transferred to the proper United States District Court and proceeded with, the record of a criminal prosecution pending in the United States court for a district of the Indian Territory at the time of the admission of Oklahoma as a state is properly certified to the District Court of the United States by the clerk of the state district court as successor of the Uuited States court, where the indictment, subpcena, petition for transfer, and order of transfer are certified and transmitted to the proper District Court, and it has jurisdiction of the prosecution.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 199-205; Dee. Dig. § 101.*]</p> <p>2. Jury (§ 47*) — Summoning Jury — District.</p> <p>Under Enabling Act Okl. June 16, 1906, c. 3335, § 16, 34 Stat. 276, as amended by Act March 4, 1907, e. 2911, § 1, 34 Stat. 1280, authorizing the transfer to the United States District Court of prosecutions pending on the admission of Oklahoma as a state, to be proceeded with in the District Court as if originally brought therein, one indicted in the United States court for a district of the Indian Territory may not complain, on the transfer of the prosecution to the District Court for the Eastern District of Oklahoma, that the jurors, with the exception of one, were drawn from that portion of the Eastern District of Oklahoma which did not include any part of the old district of the Indian Territory.</p> <p>[Ed. Note. — For other eases, see Jury, Cent. Dig. § 254; Dec. Dig. § 47.*]</p> <p>3. Criminal Law (§ 576*) — Privileges oe Accused — 'Speedy Trial.</p> <p>One may not acquiesce in the postponement of his trial for crime from time to time, and then insist on the dismissal of the prosecution, because he has not been given a speedy trial, as guaranteed by Const. U. S. Amend. 6.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1297-1304; Dec. Dig. § 576.*]</p> <p>4. Criminal Law (§§ 301, 1149*) — Leave to Withdraw Plea oe Not Guilty and File Demurrer — Discretion oe Trial Court.</p> <p>The refusal of the trial court to allow accused to withdraw his plea of not guilty and file a demurrer to the indictment is within the" sound discretion of the trial court, and will not be disturbed in the absence of an abuse of discretion.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent Dig. §§ 687, 3014 3015, 3020, 3022, 3023; Dec. Dig. §§ 301, 1149.*]</p> <p>5. Banks and Banking (§ 257*) — False Entry in Report to Comptroller oe Currency — Indictment—Sufficiency.</p> <p>An indictment alleging that accused made a false entry in a report to the Comptroller of the Currency of the condition of a national bank at the close of business on a designated date, and that the report showed that the balance due to the .bank from anothér bank on that date was $21,007.97, when in truth and in fact the balance was only $14,895.97, . sufficiently charges a violation of Rev. St. § 5209 (U. S. Comp. St.' 1901, p. 3497), punishing the making of false reports, when aitacked by motion in arrest.</p> <p>[Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 965, 906, 970-976; Dec. Dig. § 257.*]</p> <p>6. Banks and Banking (§ 257*) — “False Entry” in Report to Comptroller "of Currency — Indictment—Issues, Proof, and Variance.</p> <p>The variance between an indictment, alleging that accused made a false entry in a report to the Comptroller of the Currency of the condition of a national bank, so as to show the balance due the hank from another bank as $21,007.97, when in truth and in fact the balance was only $14,895.97, and the proof that the true balance due was $14,947.6S, is immaterial; the gist of the offense being the making of a “false entry” knowingly and with intent to deceive, and the exact amount of the balance stated to be due not being material.</p> <p>[Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 965, 966, 970-976; Dee. Dig. § 257.*</p> <p>For other definitions, see Words and Phrases, vol. 3, pp. 2656, 2657; vol. 8, p. 7660.]</p> <p>7. Banks and Banking (§ 257*) — False Entry in Report to Comptroller of Currency of Condition of National Bank — Criminal Prosecution —Evidence—Admissibility.</p> <p>On a trial for having made on September 4, 1906, a false entry in a report to the Comptroller of the Currency of the condition of a national bank at the close of business on that date, so as to falsely show the balance due it from another bank, the admission of evidence that accused in October following admitted a shortage in his accounts, and that he thought that most of it was in the account of such hank, to throw light on the question as to whether accused knowingly made the false entry, was not erroneous.</p> <p>[Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 965, 966, 970-976; Dec. Dig. § 257.*]</p> <p>8. Criminal Law (§ 434*) — Evidence—Private Records.</p> <p>On a trial for making a false entry in a report to the Comptroller of the Currency of the condition of a national hank by showing a false balance due the bank from another bank, the hooks of the latter bank are inadmissible in evidence, in absence of the testimony of some person who either has some knowledge of the correctness of the entries made in the books, or some knowledge of the original transaction on which the entries were founded; and the mere fact that the laws of the United States make it a crime to make false entries in the hooks of a national bank does not make the hooks prima facie evidence of their contents, simply on their being identified as bank books, but their admissibility is determined by the rule governing the admission of entries in private books of account.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1023; Dec. Dig. § 434.*]</p> <p>9. Criminal Law (§ 402*) — Evidence—Condition of Books of Account— Expert Testimony.</p> <p>Expert testimony of a summary of books of account and documents is admissible, where the items are multifarious and voluminous, and of a character to render it difficult for the jury to comprehend material facts; but, before such expert testimony may he given, the books or documents must be public records, or, if private books of account or documents, sufficient evidence must first be given to admit the books or documents themselves in evidence, unless the books or documents are admitted to be correct.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 887, 888; Dec. Dig. § 402.*] ,</p>

Witmer, Judge. Suit in equity by the York Haven Paper Company, to the use and benefit of Henry W. Stokes, receiver of said Company, against the York Haven Water & Power Company. Decree for complainant, and defendant appeals.

<p>Appeal from the District Court of the United States for the District of Nevada; Edward S. Farrington, Judge.</p> <p>Suit in' equity by the United States against the Golconda Cattle Company. Decree for complainant, and defendant appeals.</p>

<p>In Error to the District Court of the United States for the District, of Utah; John A. Marshall, Judge.</p> <p>Action by the United States, as guardian and trustee of Ben Niccowree, against Arthur Deon Gray and John Dinkins. Judgment for defendants, and the United States brings error.</p>

<p> (Syllabus by the Court.) </p> <p>1. Indians (§ 23*) — ^Personal Property — Capacity op United States to Sue por Wrongful Taking.</p> <p>The United States has capacity to sue for the fraudulent or wrongful taking from an Indian of his personal property held by him subject to the control and management of an Indian agent, because such a taking infringes its governmental rights, obstructs the execution of its governmental policy, and interferes with the lawful means it uses to carry it into effect.</p> <p>[Ed. Note. — For other cases, see Indians, Cent. Dig. § 15; Dec. Dig. § 23.*]</p> <p>2. Indians (§ 6*) — Citizenship—Government Control op Property.</p> <p>The admission of Indians to citizenship does not necessarily withdraw their'property from the control and management of the United States, or relieve it from the duty to protect such property from the force, fraud, and wrong of the superior race, and to redress its wrongful taking or injury.</p> <p>[Ed. Note. — For other cases, see Indians, Cent. Dig. § 12; Dec. Dig. § 6.*</p> <p>Admission of Indians to citizenship, see note to United States v. Allen, 103 C. C. A. 13.]</p>

<p>In Error to the Circuit Court of the United States for the District of Utah; John A. Marshall, Judge.</p> <p>Action by John R. Thomas against the Mammoth Mining Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Shipping (§ 62*) — Charters—Liability of Owner — Conflict Between Bills of Lading and Charter Party.</p> <p>Where a charter party which does not effect a demise of the vessel provides that the master shall sign bills of lading when presented without prejudice to the charter party, the owner is bound to a shipper by the terms of a bill of lading so signed, although they may be in conflict with those of the charter party.</p> <p>[Ed. Note. — Eor other cases, see Shipping, Cent. Dig. §§ 257-269, 313-315, 317; Dec. Dig. § 62.*]</p> <p>2. Shipping (§ 62*) — Charters—Eights op Parties.</p> <p>A charter party provided that the master should sign bills of lading-when presented “without prejudice to this charter party.” It was further stipulated, “Average (if any) in accordance with the York-Antwerp rules, 1890,” and such rules provided that “no jettison of deck cargo shall be made good as general average.” The master, however,, was required by the charterer to sign bills of lading for certain consignments of lumber containing a provision that such rules should govern, “excepting that jettison of deck cargo (and freight thereon) for the common safety'shall be allowable as general average,” and did sign the same under protest. A part of the deck cargo covered by such bills of lading was jettisoned, and the shipowner was subjected to loss in general average, and, the other bills of lading containing no such exception, it could not call on the other shippers to contribute. Held that, while it was bound by such bills of lading as regarded the shippers, the rights of the parties to the charter were governed by its terms, and that it was entitled to recover its loss from the charterer.</p> <p>[Ed. Note. — -For other cases, see Shipping, Cent. Dig. §§ 257-269, 313-315, 317;, Dec. Dig. § 62.*]</p>

Henry Lacombe, Judge. Action by Isidor Straus and others against the American Publishers’ Association and others. Defendants had judgment on the pleadings, and plaintiffs bring error.

Thompson, Judge. Action at law by William H. Farless and another against B. H. Morehead and others. Judgment for defendants, and plaintiffs bring error. The court below, at the close of plaintiff’s testimony, directed a verdict for defendants; hence, we must consider as the facts the best case for plaintiffs which their testimony tended to prove. It is this: Plaintiffs lived in Henderson, Ky.

<p>Petition to Revise Order of the District Court of the United States for the Southern District of New York; Charles M. Hough, Judge.</p> <p>In the matter of the bankruptcy of the Guanacevi Tunnel Company, a bankrupt. Petition by Joseph G. Switzer to revise order o.f the District Court denying the application of the petitioner for the vacation of the adjudication in bankruptcy in a voluntary proceeding, and an order staying him from proceeding on his judgment in a-state court.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York; Learned Hand, Judge.</p> <p>Action by Charles G. Cornell, Jr., against the Nichols & Langworthy •Machine Company. Proceedings for the distribution of certain funds derived from policies of insurance on defendant’s plant, claimed, respectively, by Charles G. Cornell, Jr., the Industrial Trust Company, John K. Hayward, and William Beverly Winslow. From decrees of distribution, Cornell, Hayward, and Winslow appeal.</p>

<p>Appeal from the Circuit Court of the United States for the District of Colorado; Robert E. Lewis, Judge.</p> <p>■ Suit in equity by H. P. Pearsons against the Fountain Valley Land & Irrigation Company and the Continental Trust Company. Decree for complainant, and defendants appeal.</p>

<p>In Error to the Circuit Court of the United States for the Eastern District of Michigan; Henry H. Swan, Judge.</p> <p>Action at law by Henry Gamble against the Cleveland-Cliffs Iron Company. Judgment for plaintiff, and defendant brings error.</p>

<p>In Error to the District Court of the United States for the Middle District of Pennsylvania; ■ Charles B. Witmer, District Judge.</p> <p>Action by Katie Pristasz against Jacob Suravitz. Judgment for plaintiff, and defendant brings error.</p>

.Petition for Revision of Order of the District Court for the Southern District of Ohio; Howard C. Hollister, Judge. Held: That the order of the referee was void, because the District Court for the Northern District of Ohio did not have jurisdiction over either the respondent or the property sought to be recovered; and (2) that respondent’s possession of the money is adverse to the rights of the trustee, and therefore that the controversy must be…

Libel by the United States against the steam tug Confidence; the Southern Pacific. Company, claimant. Decree for libelant, and claimant appeals. This cause comes here upon appeal from a final decree which adjudged that the United States recover a penalty against the steam tug Confidence under Act -Tune 7, 1897, c. 4, 30 Stat 103 (U. S. Comp.

Petition for Revision of Proceedings of the District Court of the United States for the Southern District of New York; Learned Hand,, Judge. In the matter of bankruptcy proceedings of Louis Frasin and Abraham H. Oppenheim, individually and as copartners composing the firm of Frasin & Oppenheim.

<p>Patents (§ 328*) — Validity and Infringement — Bottle Stopper.</p> <p>Tlie Painter patent No. 792,2S4, for a method of making bottle stoppers or closures, and the Painter patent No. 887,838 and Wheeler patent No., 887,883, each for a machine for practicing such process, and the latter for an improvement thereon, all held not anticipated, valid, and infringed.</p>

<p>1. Patents (§ 26*) — Invention—Combination of Old Elements.</p> <p>Each and every separate element of a combination may be old, and; yet the combination as a whole may show patentable novelty and invention if the several elements so coact as to produce a result which is either new in itself, or by means of such coactiou is produced in a novel or improved way.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 27-30; Dec. Dig. § 26.*</p> <p>Patentability of combinations of old elements as dependent on results attained, see note to National Tube Co. v. Aiken, 91 C. C. A. 123.]</p> <p>2. Patents (§ 66*) — Anticipation—Prior Art.</p> <p>A patent is not in the prior art with respect to another which at the time of its issuance was pending on application in the Patent Office.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 79, 81; Dec. Dig. § 66.*]</p> <p>3. Patents (§ 328*) — Validity and Infringement — Safety-Fuse.</p> <p>The Sachs patent, No. 660,341, for a safety-fuse, consisting of a combination of elements, the most important of which is a thin, flat safety strip of rapidly oxidizing metal, of extended area, and maximum contact -with the nonconducting filling in the case, was not anticipated, and discloses patentable novelty and invention; also held infringed.</p>

<p>In Equit}'-. Suit by the American Caramel Company against the Glen Rock Stamping Company. On final hearing.</p>

<p>Patents (§ 328*) — Validity and Infringement — Caramel Holder.</p> <p>The Lafean patent, No. 945,788, for an improvement in caramel holders, held valid and infringed.</p>

<p>Courts (§ 299*) — Federal Courts — Jurisdiction.</p> <p>A bill, alleging infringement of a patent in the manufacture and sale of filters, and unfair competition in selling filters, and praying for an injunction' restraining the infringement and the sale of filters in the types of packages complained of, is demurrable, where both parties are citizens of the same state, on the ground that the court has no jurisdie- ' tion over the unfair competition; and complainant will be given leave to amend, so as to stand on alleged infringement alone.</p> <p>[Ed. Note. — For other cases, see Courts, Gent. Dig. § 841; Dec. Dig. § 209.*]</p>

In the matter of the bankruptcy of Edward C. Merry, a bankrupt. Decision of the referee denying to the bankrupt right to amend his schedules so as to enlarge his exemptions, and question certified to the District Court.

<p>1. Equity (§ 150*) — Bill—Multifariousness.</p> <p>Where certain oleomargarine taxes assessed against C. became a lien on certain real estate held by her at the time of the levy and also on certain leasehold interests, a bill to enforce the assessment against C. and also against separate grantees of the real estate and of the leaseholds was not multifarious because the grantees of the real estate had no interest in the leasehold property, and vice versa; the tax not being apportionable among the land or terms of years held by the grantor.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. §§ 342, 371-379; Dec. Dig. § 150.*]</p> <p>2. Internal Revenue (§ 26*) — Oleomargarine Tax — Uien—Enforcement.</p> <p>The United States is not compelled to resort to a sale of chattels and personal effects of a delinquent internal revenue taxpayer, authorized by Rev. St. §§ 3187-3196 (U. S. Comp. St. 1901, pp. 2073-2077), before instituting proceedings to enforce the lien of such taxes on the taxpayer’s real estate and leaseholds. '</p> <p>[Ed. Note. — For other cases, see Internal Revenue, Cent. Dig. § 74; Dec. Dig. § 26.*]</p> <p>3. Internal Bevenue ,(§ 20*) — Assessments—Lien—Bona Fide Grantees.</p> <p>Under Kev. St. § 3186 (U. S. Comp. St. 1901, p. 2073), providing that a delinquent internal revenue tax shall be a lien after demand in favor of the United States from the time the assessment list was received by the collector, except when otherwise provided, until paid, with interest, etc., on all property and rights to property belonging to such person, such lien was enforceable against grantees of the delinquent’s real property and leaseholds subsequent to the filing of the list with the collector and demand upon the taxpayer, though they had no notice of the lien.</p> <p>[Ed. Note. — For other cases, see Internal Kevenue, Cent. Dig. § 74; Dee. Dig. § 26.*]</p>

In Equity. Suit by the McCormack Bros. Company against the City of Tacoma, Wash., and others to restrain the enforcement of a license tax ordinance on persons dealing in trading stamps.

<p>Bankruptcy (§ 421*) — Debts Affected by Discharge.</p> <p>Where bankrupts pledged accounts due them for merchandise sold to secure a loan, and also agreed to hold any goods returned by customers whose accounts were assigned as the property of the creditor or resell the same as his agents, and account for the proceeds, a failure to pay over proceeds of goods so resold did not create a liability for willful and malicious injury to the property of the creditor, or one created by their fraud, embezzlement, misappropriation, or defalcation while acting in a fiduciary capacity, within the meaning of Bankr. Act July 1, 1898, c. 541, § 17a (2), (4), 30 Stat. 550, 551 (ü. S. Comp. St. 1901, p. 3428), as amended by Act Feb. 5, 1903, c. 487, § 5, 32 Stat. 798 (U. S. Comp. St. Supp. 1911, p. 1496), and is provable and dischargeable in bankruptcy.</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Cent. Dig. §§ 772-774; 779-786; Dee. Dig. § 421.*]</p>

Proceedings by the United States for the deportation of Bum Bing Wey, a Chinese. From an order of deportation, defendant appeals. This is an appeal by Lum Bing Wey from an order of deportation passed by United States Commissioner Oliver. There is no testimony in the case except three certificates, of which the following are copies: 1.

<p>1. Receivers ('§ 128*) — Right of Mortgage Bondholders.</p> <p>The lien of mortgage bondholders of an industrial corporation cannot be displaced by a court without their explicit consent.</p> <p>[Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 205, 210, 219— 222; Dee. Dig. § 128.*]</p> <p>2. -Receivers (§ 127*) — Receivers’ Certificates — Rights of Holder.</p> <p>The rights of a purchaser of receivers’ certificates issued under proper authority are determined and limited by the court’s order authorizing, their issuance aided in interpretation somewhat by the petition on which it is based and such other documentary evidence as may be relevant.</p> <p>[Ed. Note; — -For other cases, see Receivers, Cent. Dig. §§ 216-218; Dec. Dig. § 127.*</p> <p>Receivers’ certificates, see notes to Postal Telegraph Cable Co. v. Vane, 26 C. C. A. 350; Nowell v. International Trust Co., 94 C. C. A. 601.]</p> <p>3. Receivers (§ 128*) — Receivers’ Certificates — Rights of Holders.</p> <p>Receivers for a bankrupt industrial corporation having a valuable good will were authorized to continue the business for a specified time and to purchase necessary materials on credit; also to borrow $50,000 for-stated purposes, and to apply later for authority to issue receivers’ certificates. Their authority to continue the business was extended from time to time with the same powers. They petitioned for authority to issue receivers’ certificates to the amount of $250,000, but reduced the amount asked for to $100,000, and the petition was granted with the consent of the mortgage bondholders, and with permission to apply for leave to issue additional certificates to the amount of $150,000. The order provided that the certificates authorized, known as series A, should be a lien on all the property prior to that of the mortgage. They afterward applied for and obtained authority to issue $100,000 additional in certificates, known as series B. To this order the bondholders did not consent, nor did it provide that the certificates should be a lien. Held, that they were not entitled to rank with series A to the displacement of the mortgage, but ranked the same as debts for materials purchased by the receivers on .credit, either before or after their issuance.</p> <p>[Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 205, 210, 219-222; Dee. Dig. § 128.*]</p> <p>4. Receivers (§ 155*) — Indebtedness Contracted by Receivers — Right of Priority.</p> <p>Where receivers are authorized to continue the business of an insolvent or bankrupt corporation for a definite time and to purchase materials on credit, persons extending credit,’ without security, for materials or othe-rwise, are charged with notice of a practice of the court to extend such authority from time to time, and are not entitled to priority over latér creditors of the same class.</p> <p>[Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 283-292; Dec. Dig. § 155.*] "</p>

<p>1. Bankruptcy (§ 178*) — Transfers by Bankrupt — Collateral Security —Insolvency—Knowledge by Transferee.</p> <p>Where defendant sold a bankrupt a ear of metal, wbicb became a part of tbe assets of tbe bankrupt’s estate, but for wbicb be was unable to pay, defendant was entitled to retain certain notes of third persons and a cheek received from the bankrupt either as payment for the metal or as collateral security, whether he knew of the bankrupt’s insolvency at the time or not.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 221, 264-274, 283, 284; Dec. Dig. § 178.*]</p> <p>2. Bankuptcy (§ 250*) — Assets—Checks.</p> <p>A bankrupt, being indebted to defendant, sent him a check for $4,300, but,. being unable to meet it requested defendant to send his cheek for $1,325 for that purpose. This having been • done, the bankrupt again telephoned defendant that he could not meet the $4,300 check by the use of defendant’s check, and suggested that defendant might as well stop payment on his own check, which he did, and when it was presented it was protested. Held, that such protested check was not an asset of the bankrupt’s estate which the trustee could enforce against defendant.</p> <p>[Ed. Note. — For other cases, gee Bankruptcy, Cent. Dig. §§ 235, 350; Dec. Dig. § 250.*]</p> <p>3. Bankruptcy (§ 303*) — Transfers—Preferences.</p> <p>Evidence held insufficient to show that defendant had reasonable cause to believe that a bankrupt was insolvent at the time he delivered certain securities to defendant, either as collateral or payment on his indebtedness to defendant, or that the bankrupt intended thereby to create a preference.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 458-462; Dec. Dig. § 303.*]</p>

Action by A. D. Kern against the Chicago, Milwaukee & Puget Sound Railway Company. On motion of plaintiff’s attorneys to strike from defendant’s answer one of the defenses. Motion denied. Plaintiff’s attorneys allowed to continue action, notwithstanding the allegation of settlement.

In Equity. Suit by the Belt Line Railway Company against the City of Montgomery. On demurrer to bill.

In Equity. Suits by the Pennsylvania Steel Company and another against the New York City Railway Company and another, by the Farmers’ Roan & Trust Company against the Metropolitan Street Railway Company and others, by the Guaranty Trust Company of New York against the Metropolitan Street Railway Company and others, and one other cause.

In Admiralty. Suit for collision by John Brown, master of the steamship Bangor, against the steam tug Viking and the barge Robert Donaldson. On final hearing.

In Admiralty. Suit for collision by George F. Howland, master of the barge Florida, against the steamship Kirnwood, with the tug Coastwise impleaded

In Bankruptcy. In the matter of bankruptcy proceedings of the American Lime Company. A claim of lien by Davis, Kelly & Co. for certain machinery alleged to have been sold to the bankrupt having been overruled by the referee, they petition for review.

In the matter of Jay Nuckols, bankrupt. On review of order of referee allowing the claim of the Mechanics’ Bank & Trust Company as a secured debt. This cause came before the court on petition of the trustee in bankruptcy for review of an order of the referee allowing the claim of the Mechanics’ Bank & Trust Co. as a secured claim and disallowing the trustee’s objection thereto.

<p>1, Courts (§ 314*) — Federal Courts — Jurisdiction—Diversity of Citizenship — Nuisance—Injunction.</p> <p>A bill by citizens and residents of Florida legally engaged in selling liquor in that state against an express company, a corporation organized under the laws of Georgia, to restrain it from accepting for transportation liquors illegally sold in that state to purchasers therein in competition with complainant, was within the jurisdiction of the federal court based entirely on diversity of citizenship of the parties.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 860; Dec. .Dig. § 314.*</p> <p>Diverse citizenship as a ground of federal jurisdiction, see notes to Shipp v. Williams, 10 C. C. A. 249; Mason v. Dullagham, 27 C. C. A. 298.]</p> <p>2, Courts (§ 266*) — Illegal Act in Foreign State — Damage to Property within Jurisdiction.</p> <p>Where transportation of liquor illegally sold in Georgia by defendant express company to consignees in that, state came into competition with complainant’s legal sales of liquor in Georgia, transported from complainant’s place of business in Florida, a federal court sitting in Florida had jurisdiction to restrain the further transportation of liquor so illegally sold in Georgia.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig, §§ 806-808; Dec. Dig. § 266.*]</p> <p>3, Intoxicating Liquors (§ 262*) — Wrongful Sales — Transportation—Injunction.</p> <p>An injunction restraining an express company from accepting and transporting liquor illegally sold would not be withheld because the agents of the company could not distinguish illegal from legal shipments, it appearing that such agents could determine with reasonable accuracy whether the shipments did or did not consist of liquor illegally sold.</p> <p>[Ed. Note. — For other eases, see Intoxicating Liquors, Cent. Dig. § 402; Dec. Dig. § 262.*]</p> <p>'á.' Injunction (§ 103*) — Subjects of Injunctive Relief — Criminal Action— Private Property Right.</p> <p>Where liquor illegally sold was transported by defendant in Georgia, and came into direct competition with legal sales made by complainant in interstate commerce from complainant’s place of business in Florida, complainant’s application for an injunction restraining further transportation of such liquor so illegally sold will not be denied on the ground that the writ would not issue merely to restrain a criminal action.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 176, 177; Dec. Dig. § 103.*]</p> <p>O. Injunction (§ 34*) — Right to Relief — “Private Right.”</p> <p>The term “private right,” as used with reference to the right of a person to injunctive relief, is used as a mere distinguishing term from “public right,” and not as meaning any particular monopolistic right.</p> <p>[Ed. Note. — For other caées, see Injunction, Cent. Dig. §§ 74-81; Dec. Dig. § 34.*</p> <p>For other definitions, see Words and Phrases, vol. 6, p. 5578.]</p>

<p>1. Bankruptcy (§ 340*) — Proof of Claim — Evidence.</p> <p>A sworn proof of claim is prima facie evidence of the statements made therein, even in case the claim is objected to; being regarded more as a deposition than a pleading.</p> <p>[Ed. Note.- — For other cases, see Bankruptcy, Cent. Dig. § 527; Dec. Dig. § 340.*]</p> <p>2. Bankruptcy (§ 340*) — Proof of Claim — Sufficiency.</p> <p>In a proof of claim, the statement of the claim and of its consideration must be full and explicit; and a proof in which as to a part of the claim no consideration whatever is stated, and, as to a part, it is stated that claimant was in the employ of the bankrupt for a specified time, and that when he left the employment a certain sum was due him as salary, without stating the nature of his employment, is insufficient as to both items.</p> <p>[Ed. Note.- — For other cases, see Bankruptcy, Cent. Dig. § 527; Dec. Dig. § 340.*]</p> <p>3. Bankruptcy (§ 330*) — Proof of Claim — Sufficiency.</p> <p>An allegation on information and belief, on a vital point in a proof of claim in bankruptcy, is not sufficient as proof of such allegation.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent.' Dig. §§ 517, 519, 521; Dee. Dig. § 330.*]</p>

<p>In Admiralty. Suit by the Tonopah Steamship Company, owner of the steamer Joseph G. Butler, Jr., against the steamship Lake Shore; Gilchrist Transportation Company, claimant.</p>

<p>■ At Law. Action by Lillian St. Bernard, as administratrix of the estate of Bion St. Bernard, deceased, against S. P. Shane and G. A. Garretson, receivers of the Gilchrist Transportation Company. On</p> <p>demurrer to complaint.</p>

<p>At Law. Action by the United States Fidelity & Guaranty Company, a corporation, against John Wenger and others. On demurrer to defendants’ answer.</p>

In Bankruptcy. In the matter of bankruptcy proceedings of Wilson M. Shear. On review of a special master’s decision denying the bankrupt’s discharge.

<p>• In Admiralty. Suit in personam by Bert Evans' against the Western Timber & Togging Company. On exceptions to libel for want of jurisdiction in the court.</p>

In Bankruptcy. In the matter of bankruptcy proceedings of one Fullick. On exceptions to the referee’s refusal to allow more than $25 as an attorney’s fee for the bankrupt.

<p>Corporations (§ 586*) — Parties—Unexecuted Agreement for Transfer of Cause of Action.</p> <p>Libelant, an English steamship company, joined with four other companies in an agreement for consolidation, providing that the vessels and other property of the several companies, including the benefit of all contracts existing on a date named, should be transferred by proper conveyances to be thereafter executed to a new company. Conveyances of the vessels of the constituent companies were subsequently made, but with respect to choses in action and similar assets the parties agreed that the same should be realized on and the proceeds paid over to the new company. One of such chóses in action within the terms of the agreement was a claim by libelant against respondent for breach of a charter. Seld, that the agreement itself, not having been éxecuted as to such claim by a transfer or assignment, did not divest libelant of its title or interest so as to deprive it of the right to maintain a suit thereon in its own name.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2348-2353: Dec. Dig. § 5S6.*]</p>

In Error from the Circuit Court of the United States for the Eastern Division of the Northern District of Illinois; George A. Carpenter, Judge. Actions by Edward L. Suffern and another, doing business as Suffern & Son, by National Copper Bank, arid by Allen P. Hallett against St. Vincent College. Judgment for plaintiff in each case, and defendant brings error.

<p> (Syllabus by the Court.) </p> <p>1, Criminal Law (§ 1163*) — Review—Prejudice from Error — Presumption.</p> <p>The legal presumption is that error produces prejudice. It is only when the fact so clearly appears as to be beyond doubt that an erroneous ruling did not prejudice, and could not have prejudiced, the complaining party that the rule that error without prejudice is no ground for reversal is applicable.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3090-3099; Dec. Dig. § 1163.*]</p> <p>2. Criminal Law (§§ 911, 942, 1156, 1176*) — New Trial — Discretion of Court — Review—Prejudicial Error.</p> <p>On the trial of the defendant for murder in the first degree, the witnesses for the government had testified to a state of facts tending to show his guilt, and the defendant and his- witnesses to a state of facts tending to show, justifiable homicide, and the defendant had testified that he had never intended to kill the deceased until in fear of his life he fired to save it, when counsel for the prosecution asked him if he had not told one Campagnoli that he had intended to kill the deceased and two other men, but could not find them together, and he answered this question in the negative, and immediately rested his ease. On rebuttal Campagnoli was called by the government, and testified that the defendant had made such a statement to him. There was a verdict of murder in the second degree. Thereafter the defendant made a motion for a new trial on the affidavit of Campagnoli that the defendant never made any such statement to him as he had testified to, that he was intoxicated when he gave his evidence, and after he became sober he knew that the defendant had never made any such statement, and upon the affidavit of the defendant to the same effect and that he had no notice or information that Campagnoli would testify as he did until he came upon the stand in rebuttal. The court denied this motion for a new trial.</p> <p>Held: (1) It did not appear beyond doubt that this ruling did not prejudice and could not have prejudiced the defendant, but the record strongly indicated that the ruling whs prejudicial error.</p> <p>(2) It was a rule of the Supreme Court of the territory of New Mexico that a denial by the trial court of a motion for a new trial based upon facts not presented at the trial rested in the sound discretion of the trial court, but that an abuse of that discretion entitled the defeated party to a reversal of the order by the Supreme Court of the territory on an appeal or writ of error.</p> <p>(3) The denial of the motion for a new trial by the trial court and its failure to grant the defendant a subsequent fair trial in which the false testimony of Campagnoli should be excluded from the minds of the triers was a gross abuse of its discretion fatal to the judgment below.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2134, 2316, 2331, 2332, 3067-3071, 3190, 3191; Dec. Dig. §§ 911, 942, 1156, 1176.*]</p> <p>S. Homicide (§ 295*) — Trial—Instructions—Degree of Offense.</p> <p>Where the statute under which the defendant was prosecuted defined murder in the second degree so far as material to this case, to be murder which “shall be perpetrated in the heat of passion without design to effect death, but in a cruel and inhuman manner, or by means of a dangerous weapon, unless it is committed under such circumstances as constitute excusable or justifiable homicide,” and declared that every' killing by another which was not murder in the first or second degree and .was not excusable or justifiable homicide was murder in the third degree, it was prejudicial error to omit the words “in the heat of passion,” and to charge the jury that murder in the second degree was “all murder which shall be perpetrated by means of a dangerous weapon, unless it is committed under such circumstances as constitute excusable or justifiable homicide.”</p> <p>[Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 600-609; Dec. Dig. § 295.*]</p> <p>4. Criminal Law (§ 789*) — Trial—Instructions—Reasonable Doubt.</p> <p>A charge that “a reasonable doubt is one for which a reason could be given based on the evidence or want of evidence in the case” destroys the rule of reasonable doubt, substitutes for a reasonable doubt a demonstrable doubt logically and conclusively sustained by the evidence or the want of it, and is error.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1846-1849, 1904-1922, 1960, 1967; Dec. Dig. § 789.*]</p> <p>5. Criminal Law C§ 1028*) — Writ oe Error — Presenting Questions in Trial Court — Necessity.</p> <p>In criminal cases in which the life or the personal liberty of the defendant is at stake, the courts of the United States, in the exercise of 'a sound discretion, may review and correct grave errors in the trials, although the questions they present are not raised by proper requests, objections, or exceptions in the trial court.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2619, 2620; Dec. Dig. § 1028.*] 1</p> <p>6. Criminal Law (§ 561*) — “Reasonable Doubt.”</p> <p>A reasonable doubt is such a doubt as would cause a prudent and rational man to act or to pause or hesitate to act in the determination of any of the affairs of life of the highest importance to himself.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1267; Dec. Dig. § 561.*</p> <p>For other definitions, see Words and Phrases, vol. 7, pp. 5958-5972; vol. 8, p. 7779.]</p>

<p> (Syllabus by the Court.) </p> <p>1. Criminal Raw (§ 1163*) — Homicide (§ 340*) — Appeal—Practice—Error Implies Prejudice — Harmless Error.</p> <p>The legal presumption is that error produces prejudice. It is only when the fact so clearly appears as to be beyond doubt that an erroneous ruling did not prejudice, and could not have prejudiced, the complaining party that the rule that error without prejudice is no ground for reversal is applicable. Facts considered, and held to fail to show that the error could not have prejudiced the defendant.</p> <p>[Ed. Note.- — For other cases, see Criminal Law, Cent. Dig. §§ 3090-3099'; Dec. Dig. § 1163*; Homicide, Cent. Dig. §§ 715-720; Dec. Dig. § 340.*] .......</p> <p>2. Criminal Law (§ 789*) — Reasonable Doubt.</p> <p>A charge that “a reasonable doubt is one for which a reason could, be given based on the evidence or want of evidence in the case” destroys the rule of reasonable doubt, substitutes for a reasonable doubt a demonstrable doubt, logically and conclusively sustained by the evidence or the want of it, and places too heavy a burden upon the defendant.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1846-1849, 1904-1922, 1960, 1967; Dec. Dig. § 789.*]</p>

Landis, Judge. Action at law by the Indiana Automobile Company against the Oakland Motor Car Company. Judgment for plaintiff, and defendant brings error. The Oakland Motor Car Company, plaintiff in error, was defendant below in the suit brought by the Indiana Automobile Company to recover damages for alleged breach of contract.

Wright, Judge. '■ Petition in equity by John H. Mitchell, receiver of the Mt. Carmel Gas & Electric Company, against F. G. Hoffman and R. R. Townsend, partners as Hoffman & Townsend. From the order entered, respondents appeal.

<p>Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois; Christian C. Kohlsaat, Judge. _</p> <p>_ Suit in equity by Borden’s Condensed Milk Company against the Borden Ice Cream Company, Charles F. Borden, George W. Brown, Edgar V. Stanley, William H. Powers, and Harry Lawler. From an order granting a preliminary injunction (194 Fed. 554), defendants appeal.</p> <p>This is an appeal from an interlocutory order of injunction entered in the District Court, restraining the appellants “from the use of the name ‘Borden’ in the manufacture or sale of ice cream and like articles, and the manufacture or sale of milk products in any of their forms, without plainly and in written or printed form attached to all cartons of such commodities, and upon all wagons or other vehicles used in the delivery of such commodities, and on all letter heads and other stationery going out to customers and to the public, and in all places where the name ‘Borden’s Ice Cream Company’ may hereafter appear in the transaction of any business by the defendants, advising purchasers and the public in an unmistakable manner that the product of the defendants is not that of the complainant, ‘Borden’s Condensed Milk Company.’ ”</p> <p>The word “Borden” in the corporate name of the appellee was taken from the name of Gail Borden, who founded the business in the year 1857, and since that time it has been and is now a trade-name of great value, identified almost universally with the business of milk and milk products of the appellee and its predecessors. The trade-name “Borden,” or the word “Borden,” constitutes one of the principal assets of the appellee, and is widely known and identified with the good will and public favor enjoyed by it throughout the United States.</p> <p>On May 31, 1899, the appellee was incorporated under the laws of the state of New Jersey, with broad corporate powers, and specifically authorized “to manufacture, sell and otherwise deal in condensed, preserved and evaporated milk and all other manufactured forms of milk; to produce, purchase and sell fresh milk, and all products of milk; to manufacture, purchase and sell all food products; to raise, purchase and sell all garden, farm and dairy products; to raise, purchase and sell, and otherwise deal in, cattle and all other live stock; to manufacture, lease, purchase and sell all machinery, tools, implements, apparatus and all other articles and appliances used in connection with all or any of the purposes aforesaid, or with selling and transporting the manufactured or other products of the company; and to do any and all things connected with or incidental to the carrying on of such business, or any branch or part thereof.”</p> <p>It may be stated in this connection that the charter of the company eontains no express authority to manufacture or sell what is known commercially as' ice cream.</p> <p>The record shows that the ai>pellee uses in the disposition of its products some thirty-two brands, each one of which either contains the name “Borden," or is used in connection with the name “Borden’s Condensed .Milk Company.” Of these brands sixteen specifically refer to condensed or evaporated milk, seven to candy, two to malted milk, one to coffee, one to butter, one to buttermilk, one to fluid milk, two to cream, and one to malted milk ice cream; and that trade-marks have been registered on most of the brands.</p> <p>Appellee has developed in the state of Illinois and the city of Chicago, and elsewhere, a large business in the sale of fresh milk and cream and evaporated milk to confectioners for use by them in making commercial ice cream. It has expended large sums of money in promoting and advertising its business, and particularly, in extending the sale of the so-called “Borden’s Peerless Brand Evaporated Milk, Confectioners’ Size,” a high quality of evaporated milk inclosed in cans, especially designed for use in the manufacture of ice cream.</p> <p>For more than two years prior to the filing of the bill in the District Court, the appellee had been manufacturing a form of ice cream known as “Borden’s Malted Milk Ice Cream,” which product is, as the name implies, an ice cream made with malted milk as its basic element, and is especially adapted for use in hospitals. This malted milk ice cream, which hitherto has been used only in hospitals, the appellee is about to place on the market for general use in competition with commercial ice cream.</p> <p>On May 25, 1911, the appellants Charles F. Borden, George W. Brown, and Edgar V. Stanley applied to the Secretary of State of the state of Illinois for a license to incorporate under the name of “Borden lee Cream Company.” On July 31, 1911, the appellee notified the individual appellants that the term “Borden” had become so firmly established in connection with the products of the appellee the use of that word in connection with any company dealing in milk products would lead to the presumption that they were the products of the appellee, and demanded that the word “Borden” be eliminated from appellants’ company name.</p> <p>On the same day appellee protested to the Secretary of State of the state of Illinois against the issuance of any charter under the name of “Borden. Ice Cream Company,” but on the 16th of August, 1911, a charter was duly issued to the “Borden Ice Cream Company,” by which it was authorized “to manufacture and sell ice cream, ices and similar products.”</p> <p>The appellant Charles F. Borden had never before been engaged in the ice cream business, or in buying or selling milk or milk products, or in any similar business, and is not the principal person connected with the appellant Borden Ice Cream Company. The appellant Lawler is an ice cream manufacturer, and has subscribed to 47 out of a total of 50 shares of stock of the Borden lee Cream Company. Charles F. Borden has subscribed to one share of stock, and has not paid for that.</p> <p>The bill charges, upon information and belief, that it is the intention of appellant Borden lee Cream Company to use the word “Borden” for the purpose. of trading upon the reputation of appellee’s goods and products, and for the purpose of deceiving and defrauding the public into the belief that such product is the product of the appellee; that such “improper, deceitful an*l fraudulent use of the name ‘Borden’ will be a great and irreparable injury to the complainant’s [appellee’s] property right in its trade-name; and that the reputation of the products of complainant [appellee]' will be greatly injured thereby; and that the business of complainant [appellee] will be injured;” and that there will be great confusion in the business carried on by the original company because of such improper use; and that it will be impossible for present and prospective customers to know that the product of the Borden lee Cream Company is not the product of Borden’s .Condensed Milk Company.</p> <p>The bill and the affidavits on file do not show any facts tending to sustain the allegation of irreparable injury to the old company or its business, or showing or tending to show that the old company has been or will be injured in any way in the business which it is now engaged in. Moreover, it does not appear that the malted milk ice cream manufactured by the old company will in any way come into competition with the commercial ice cream proposed to he put on the market by the new company.</p> <p>The bill was filed before the defendant had started to do any business. The answer admits most of the material allegations, but denies all fraudulent purpose.</p>

<p> (Syllabus by the Court.) </p> <p>Insurance (§ 229*) — Cancellation oe Policy by Insurer — Notice and Tender — Foreign Corporation.</p> <p>Under the provision of an insurance policy that it may be canceled, by the insurer by giving notice of cancellation and tendering a ratable proportion of the premium to the insured, mailing a proper notice, or a copy of it, and the return premium in a letter postpaid and addressed to the insured at its post office address, or delivering a copy of the notice and the return premium to an agent in charge of its office and business, are sufficient to effect the cancellation, where the insured is a foreign corporation, and all its officers are absent from the state in which its office, its principal place of business, and the property insured are situated.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 500-503; Dec. Dig. § 229.*] •</p>

In the matter of the application of Arthur K. Beckwith for leave to file a petition for an alternative writ of mandamus.

Petition by the Welch Manufacturing Company for writ of mandamus to direct the judge of the District Court for the District of Massachusetts to compel the witness to answer certain questions put on cross-examination in an equity suit pending in that court for infringement of patent.

J. Cochran, Judge. Suit in equity by H. L. Walsh, trustee in bankruptcy of the Tiger Shoe Manufacturing Company, bankrupt, against the ’First National Bank of Maysville, Ky. Decree for defendant, and complainant appeals.

<p>Appeal from the District Court of the United States for the District of New Jersey; Joseph Cross, Judge.</p> <p>' Suit in equity by the Submarine Rock Breaking Company against the Submarine Company and others. Decree for complainant, and defendants appeal.</p>

<p>Patents (§ 328*) — Validity and Infringement — Wallet.</p> <p>The Cardwell patent, No. 910,853, for a wallet designed to carry paper money, is void for lack of invention; also held not infringed, if conceded validity.</p>

Henry Lacombe, Judge. Suit in equity by the Nurnberger Metall und Lackierwarenfabrik Vormals Gebruder Bing, Aktiengesellschaft, against the New Toy Manufacturing Company. From an order denying a motion for a preliminary injunction restraining the defendant from infringing the claim of letters patent No. 1,035,098, granted to Heinrich Müller, of Nuremberg, Germany, for an improvement in means for producing a walking movement in toy figures, complainant appeals.

Hazel, Judge. Suit in equity by the Ransome Concrete’ Company against the German-American Button Company. Decree for complainant, and defendant appeals. This cause comes here upon appeal from a decree .of the District- Court, Western District of New York, holding letters patent No. 694,580, granted March 4, 1902, to B. L. Ransome, for concrete construction, to be valid and infringed. The opinion of the District Judge will be found in (D. C.) 19'i Bed. 172.

<p>1. Patents (§ 328*) — Validity and Infringement — Filtering Process for Treatment of Metal-Bearing Slimes.</p> <p>The Moore patent, No. 764,486, for a filtering process, for recovering the metal contained in rnetal-bearing slimes, was not anticipated and discloses patentable invention; the process shown being a radical departure from the whole prior art and an original and pioneer step in metal recovery by filtration, to make possible the further application of the cyanide treatment of slimes. Claims 4 and 5 also held infringed.</p> <p>2. Patents (§ 175*) — Process Patent — Infringement.</p> <p>As the apparatus shown in a process patent is only to show that the process may be practically applied, it follows that such illustrative apparatus does not limit the process patentee to that type of machine alone; but the test of infringement of a process patent is whether the apparatus used, no matter what its form, utilizes the process.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig.' §§ 250, 250%; Dec. Dig. § 175.*]</p>

At Law. Action by Charles Fisher against the Automobile Supply Manufacturing Company for infringement of letters patent No. 969,660, for a flexible metal tube or shaft, granted to.Schmidt and Grundmann September 6, 1910. On demurrer to amended complaint.

<p>In Equity. Suit by the American Graphophone Company against C. A. Pickard, as assignee of the Hill Piano Company. On motion for preliminary injunction.</p>

<p>In the matter of the W. O. Craig Manufacturing Company, bankrupt. On petition in intervention of Triumph Electric Company to reclaim property, and objection of J. O. Patterson.</p>

<p>At Law. Action by Isaac P. Bixler and wife against the Pennsylvania Railroad Company.</p>

In the matter of the bankruptcy of John A. Nuttall and another, individually and as copartners of the firms of the Empire Knitting Mills and John A. Nuttall & Company, bankrupts. Application on order to show cause for an order restraining Leonard Paulson and others from prosecuting an action in the Supreme Court of the state of New York against the bankrupts.

'•In Equity. Suit by Samuel D. Young, trustee, against the Welch’ Manufacturing Company. On defendant’s motion for an order to compel. witness under examination to answer certain questions.

In Admiralty. Suit for collision by the Cleveland Steamship Company, owner of the steamer William E. Reis, against the steamer Monroe C. Smith; the United States Transportation Company, claimant. Cross-libel by the owner of the Smith against the Reis.

<p>1. Snippma (§ 84*) — Liability of Vessel — Injury to Stevedore — Insufficient Light with Which to Work.</p> <p>Libelant, a longshoreman engaged in unloading a ship, with others, was assisting to place the cover on a hatch at 10 o’clock at night, under direction of a mate. The night cover used was composed of planks fastened together in pairs, and when they had been raised by the winch, and lowered until they rested across the hatch coamings, libelant was directed to climb upon them and unloose the sling from the fall. When he did so, they fell apart and into the hold, carrying him with them, and resulting in his injury. Held, on the evidence, that the light furnished for the men to work by was insufficient to enable them to see that the planks rested securely on the coamings, which was the proximate cause of tlie injury, and rendered the ship liable therefor; also held, that libelant was not chargeable with contributory negligence.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 342, 349-351; Dec. Dig. § 84.*]</p> <p>2. Damages (§ 131*) — Injury to Person — Amount of Award.</p> <p>A stevedore, who was severely and painfully, but not permanently, injured by falling into the hold of a ship through the negligence of the oflicers, and .was laid up for four months, awarded $1,000 damages, besides expenses of his cure and pay for loss of time.</p> <p>' [Ed. Note. — For other cases, see Damages, Cent; Dig. §§ 357-367, 370; Dec. Dig. § 131.*]</p>

In Bankruptcy. In the matter of bankruptcy proceedings of John’ A. Howard. On demurrer to petitions filed by the Empire National Bank and W. C. Handlan to revoke the bankrupt’s discharge.

In Equity. Suit by the United States against the Eastern States Retail Lumber Dealers’ Association and others. Decree for complainant.

In Admiralty. Suit to enforce liens for repairs and supplies against the steam-tug Easby. Decree for libelants and intervening lien claimants, giving them priority over a mortgage.

<p>Collision (§ 91*) — Steam Vessels Meeting — Fault.</p> <p>A collision between the steamship. Ellwood, down bound, when -turning eastward into Lake Erie at the south) end of the Detroit River channel, and the steamship Brower, up bound from Toledo, held due solely to the fault of the Brower in keeping too far to the eastward in the part of the channel which belonged to the Ellwood, instead of turning up the channel in the usual and proper course, and as required by the passing agreement of two whistles made when the two vessels were a mile apart.</p> <p>[Ed. Nóte. — For other cases, see Collision, Cent. Dig. §§ 187-192; Dee. Dig. § 91.*]</p>

<p>1. Master and Servant (§ 256*) — Injuries to Servant — Employer's Diability Act.</p> <p>Employer’s Liability Act April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. Supp. 1911, p. 1322), imposes liability on a common carrier engaged in interstate commerce for injuries to a servant while so engaged resulting in whole or in part from the negligence of any of the officers, agents, or employes of such carrier, or from any defect or insufficiency due to its negligence in its ears, engines, appliances, machinery, track roadbed, works, boats, wharves, or other equipment. Plaintiff, a brakeman on an interstate train, by direction of the engineer, left the train at a tower to get orders, and on his return with the order, in attempting to board the train while in motion in accordance with custom, he fell under the wheels, and was injured. The complaint alleged negligence in the engineer’s failure to stop the train for plaintiff to get aboard and in defendant’s. failure to adopt and promulgate rules forbidding the practice of brakemen mounting trains while in motion, and requiring them to be stopped under such circumstances. Sold that, though the duty to promulgate rules was a nondelegable one, it was one which could nevertheless be performed only by defendant’s officers, agents, and employés, and hence both allegations of negligence were allegations that plaintiff’s injury resulted from the negligence of defendant’s officers, agents, or employés, and were within the act.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 809-812, 815; Dec. Dig. § 256.*]</p> <p>2. Master and Servant (§ 87*) — Injuries to Servant — Employer’s Liability Act.</p> <p>Employer’s Liability Act April 22, 1908, e. 149, 35 Stat. 65 (U. S. Comp. St. Supp. 1911, p. 1322), making every common carrier engaged in interstate commerce liable for injury to or death of an employe engaged in' such commerce, resulting in whole or in part from negligence of any of its officers, agents, or employés, or by reason of any defect or insufficiency due to its negligence in any of its cars, engines, etc., was intended’ to cover every act oí negligence for which a common carrier engaged in interstate commerce might be liable to its employés in such commerce.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 138; Dec. Dig. § 87.*]</p> <p>3. Commerce (§ 8*) — Employer’s Liability Act — Effect.</p> <p>Employer’s Liability Act April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. 1911, p.' 1322), making common carriers engaged in interstate commerce liable for injuries to employes, supersedes all other common-law and statutory liabilities ou the part of such carriers to such employés.</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. § 5; Dec. Dig. § 8.*]</p> <p>4. Removal of Causes (§ 25*) — Employer’s Liability Act — Injuries to Person Engaged in Interstate Commerce — Acts of Negligence.</p> <p>Where, In an action for injuries to a brakeman engaged in interstate commerce against the carrier, plaintiff claimed a liability under Employer’s Liability Act April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. Supp. 1911, p. 1322), the suit would be regarded for purposes of removal as one arising under the act, though the negligence charged be not covered by the act, or the facts alleged do not make out that there had been negligence as charged.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. §§ 58. 59; Dec. Dig. § 25.*]</p> <p>5. Removal of Causes (§ 3*) — Employer’s Liability Act — Diversity of Citizenship.</p> <p>U.nder Employer’s Liability Act April 22, 190S, c. 149, 35 Stat. 65 (U. S. Comp. St. Supp. 1911, p. 1322), as amended by Act April 5, 1910, c 143, 36 Stat. 291 (TJ. S. Comp. St. Supp. 1911, p. 1324), providing that an action brought under the act shall not- be removable, such an action is not removable, though it involves diversity of citizenship.</p> <p>[Ed. Note. — For other eases, see Removal of Causes, Cent. Dig. §§ 4, 5; Dec. Dig. § 3.*]</p>

In Admiralty. Suit by the United States, as owner of the lighthouse tender Crocus, against the steamer Frank T. Heffelfinger, the Peavey Steamship Company, claimant; the tugs Conneaut and W. G. Mason being impleaded.

<p>In Admiralty. Suit by the L. P. & J. A. Smith Company, owner of Dredge No. 8, against the steamer E. M. Peck; the Calumet Transit Company, claimant.</p>

<p>At Law. Action by Mat Kelly’s administratrix against the Chesapeake & Ohio Railroad Company and another.</p>

<p>In Equity. Suit by D. L. Calahan and C. A. Scales against the Holland-Cook Manufacturing Company. On exceptions to answer for insufficiency in not making discovery prayed for.</p>

Appeals from the Circuit Court of the United States for the Northern Division of the Western District of Michigan; Arthur C. Denison, Judge. Bill by John Brennan against Philip Tillinghast, as receiver of the First National Bank of Ironwood, Mich. From a decree awarding complainant a part of the relief demanded, both parties appeal.

Sanborn, Judge. Action at law by the Pabst Brewing Company against the Hartford Steam Boiler Inspection & Insurance Company. Judgment for plaintiff, and defendant brings error. The defendant in error, Pabst Brewing Company, was the plaintiff below in a suit against the plaintiff in error, Hartford Steam Boiler Inspection & Insurance Company (as defendant), to recover damages caused by explosions (averred to be several) of steam boilers in plaintiff’s great plant in Milwaukee.

<p>In Error to the Circuit Court of the United States for the District of Minnesota; Charles E. Amidon, Judge.</p> <p>Action by Benjamin Senske against the Canadian Northern Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Corporations (§ 566*) — Capital Stock — “Trust Fund” — Contracts Between Stockholders.</p> <p>The assets of a corporation represented by its capital stock are a trust fund for the payment of its debts; and hence stockholders may not legally agree among themselves that such fund shall be appropriated by them or some of them as against the claims of corporate creditors.</p> <p>[Ed. Note.- — For other cases, see Corporations, Cent. Dig. §§ 2283-2286; Dee. Dig. § 566.*</p> <p>For other definitions, see Words and Phrases, vol. 8, p. 7127.]</p> <p>2. Corporations (§ 566*) — Stockholders — Preferred Stock — Security — Rights.</p> <p>Corporate preferred stock guaranteed 10 per cent, out of net profits reserved to the corporation the right to redeem after a specified date, bound it to redeem before a later date, and provided that the holders, on failure to pay dividends, might foreclose a trust • mortgage given to secure the stock on all the corporation’s property, in which the stockholders were entitled to participate ratably. Held, that the provision for a preference of $11 per share to the holders referred only to a distribution of assets as between stockholders, without reference 'to the distribution of assets for the payment of debts, and that the holders of such preferred stock were stockholders, and not creditors of the corporation, and were entitled to a preference only as between themselves and the holders of the common stock.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2283-2286; Dec. Dig. § 566.*</p> <p>Preference by insolvent corporation to officers and stockholders, see note to Ellsworth v. Lyons, 104 C. C. A. 8.]</p> <p>3. Corporations (§ 566*) — Preferred Stockholders — Preference Rights.</p> <p>A provision in the certificates of preferred stock of a corporation that the stockholders should be entitled to a preference in the distribution of assets, if construed as referring to a distribution of assets to pay debts, would be against public policy and void.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2283-, 2286; Dec. Dig. § 566.*]</p> <p>4. Corporations (§ 627*) — Preferred Stockholders — Right to Dividends— Security — Mortgage.</p> <p>Rights of preferred stockholders in the distribution of profits and in the distribution of the corporation’s assets after payment of debts may be secured by mortgage.</p> <p>[Ed. Note. — For other eases, see Corporations, Cent. Dif § 2476; Dec. Dig. § 627.*]</p>

<p>In Error to the District Court of the United States for the District of New Jersey; Joseph Cross, Judge.</p> <p>Action at law by the Board of Chosen Freeholders of Cumberland County against the J. W. Paxson Company. Judgment for plaintiff, and defendant brings error.</p>

Appeals from the District Court of the United States for the Southern District of New York; Learned Hand, Judge. Suits by Irvine L. Ernst and another, as trustee in bankruptcy, against the Mechanics’ & Metals National Bank of the City of New York, and by Henry D. Hotchkiss, as trustee in bankruptcy, against the National City Bank of New York. From decrees granting relief (200 Fed. 287, 295, 299), defendants appeal, and Hotchkiss, as trustee, also appeals.

<p>In Error to 'the Circuit Court of the United States for the Eastern District of Illinois; Francis M. Wright, Judge.</p> <p>Action at law by Harper Bros., a corporation, against the Missouri Pacific Railway Company. Judgment for plaintiff, and defendant brings error.</p> <p>Defendant in error, plaintiff below, alleged in its declaration that on Febuary 10, 1910, it was the owner of 67 mules and 6 horses; that it delivered the animals in good condition to defendant to be transported on its railway from Conway Springs, Kan., to East St. Louis, 111.; that through the negligence of defendant in operating its train 60 of the animals were killed, and the remainder were severely injured; that plaintiff thereby suffered damages in the sum of $25;000, and became entitled to its reasonable attorney’s fees to be fixed by the court.</p> <p>Defendant pleaded the general issue, tender, and certain special defenses based upon a written shipping contract. A demurrer to the latter was sustained on the ground that all the special defenses so pleaded were admissible under the general issue.</p> <p>At the trial defendant introduced in evidence a “freight tariff,” together with evidence of its having been filed with the Interstate Commerce Commission and posted in the freight office at Conway Springs. This tariff showed the rate on horses and mules by car load to be $72 from Conway Springs to East St. Louis, and contained the following with respect to “valuation of live stock”: “The rates on live stock published in this tariff are based on the following valuations, which agents must be particular to see inserted in the live stock contracts: Each horse or pony (gelding, mare, or stallion) or jack, $100. * * * If owners or shippers are not agreeable to forwarding their stock subject to the above valuations, the rates will be increased 25 per cent, for each 100 per cent, or fraction thereof in excess of the above valuations.” Defendant’s offer of the written shipping contract, on plaintiff’s objections, was rejected. This contract, covering the transportation at the rate of $72 a car, provided “that in case of total loss of any of the live stock covered by this contract from any cause for which the first party will he liable, payment will be made .therefor on the basis of the actual cash value at the time and place of shipment, but in no case to exceed $100 for each horse,” etc. Defendant proved tender of an amount sufficient to cover the value of the animals as fixed in the contract; but plaintiff recovered judgment'.for a much larger sum and was allowed attorneys’ fees.</p> <p>Further facts are stated in the opinion.</p>

<p>In Error to the Circuit Court of the United States for the Eastern District of Illinois; Francis M. Wright, Judge.</p> <p>Proceeding by the City of St. Louis against Eugene Latinette, Sr., to condemn land. Judgment for petitioner, and defendant brings error.</p>

<p>In Error to the District Court of the United States for the Eastern District of Wisconsin; A. L. Sanborn, Judge.</p> <p>Action at law by E. W. Balcomb, trustee in bankruptcy of the Lawrence Manufacturing Company, against the Old National Bank and the Paine Lumber Company, Limited. Judgment for defendants, and plaintiff brings error.</p>

T. Newman, Judge. Suit in equity by Annie C. Field and another against Sarah A. Camp and others. From a decree dismissing the bill, complainants appeal.

<p>1. Patents (§ 2SS*) — Suit for Infringement — Equity Jurisdiction.</p> <p>If it appears that there was no right to an injunction at the time of the commencement of a patent suit, and that the patent will expire before there can be a hearing on the merits, the remedy at law is adequate and a eourt of equity is without jurisdiction; but, if facts existed when the suit was commenced which might sustain an injunction, the question is not .then one of jurisdiction, but of discretion in the exercise of jurisdiction.</p> <p>[Ed. Note. — For other cases, see Patent?, Cent. Dig. §§ 460-466; Dec. Dig. § 288.*]</p> <p>2. Patents (§ 313*) — Suit fob Infringement — Equity—Jurisdiction.</p> <p>That a bill charges conjoint infringement of two patents, and that as to one equity is without jurisdiction because of its expiration within a very short time, doeg not require the dismissal of the bill as to the other for want of jurisdiction.</p> <p>[Ed. Note. — For other cases, see Patents, Dee. Dig. § 313.*]</p>

<p>In Equity. Suit by Charles D. Barry and others against the Harpoon Castor Manufacturing Company for infringement of letters patent No. 995,758, for a furniture tip, issued to Henry M. Alleyn June 20, 1911. On final hearing.</p>

In Equity. Suit by the Union Special Machine Company against the Metropolitan Sewing Machine Company, Lucius N. Littauer, and Charles McC. Chapman for infringement of letters patent No. 655j-143 for a ruffling sewing machine, granted to Woodward July 31, 1900, and also the Stocker patent No. 583,391, granted May 25, 1897.-On final hearing.

In Equity. Suit by the John Kroder & Henry Reubel Company against the American Pin Company for infringement of letters patent No. 572,778 for a pole socket, granted to John H. Stevenson December 8, 1896. On final hearing.

<p>' Criminal prosecution by the United States against John H. Patterson and 29 others. On demurrer to indictment.</p> <p>The following true’ bill of indictment against the several defendants therein named was presented February 22, 1912':</p> <p>First Count.</p> <p>Southern District of Ohio, Western Division — set</p> <p>The grand jurors for the United States of America impaneled and sworn in the District Court of the United States for the Western Division of the Southern District of Ohio at the February term thereof in the year nineteen hundred and twelve, and inquiring for that división and district, upon their oath present, that throughout the twenty years last past, inventors and manufacturers have been busy inventing, producing and putting upon the market divers record-keeping and cash-receptacle devices, usually called cash register?, each consisting generally of a box, principally of metal, but partly of wood, glass and other materials, containing a drawer or recess for the holding of coins and paper money, and a mechanism, manipulated by outside .keys or similar means, for the use of employés in registering, for the information of the proprietor, upon a concealed and locked record, the sales made by employés of the business concern making use of the device, and at the same timé visibly indicating the amount of each sale or the character of each transaction; the recording -or registering devices being so connected with the lock of ¿the money-drawer that when any of said devices is operated the money-drawer is unlocked and- opened, so that money can be placed therein and change extracted therefrom; said money-drawer being automatically locked upon being closed, and the interior mechanism of said registering device being protected by a lock, the key of which is retained by the proprietor, from being interfered with by unauthorized persons; numerous patents having, during said twenty years, been issued to inventors, some basic and some for improvements; most of the former and many of the latter having expired long before the three-year period of time in this indictment hereafter mentioned ; and the number of such patents being so great as to prevent the setting forth in this indictment of detailed descriptions of the same, or of the various inventions covered by them, even if such descriptions were known to said grand jurors :</p> <p>That such cash registers have been found so useful and the demand for them has been so great that, during said twenty years, many concerns have been engaged, in the manner and under the circumstances in this indictment hereafter set forth and in competition with each other, except as hereinafter shown, in the manufacture and sale, directly and indirectly under letters patent, and otherwise, of such cash registers; and that a list of the names of such of said concerns as are known to said grand jurors, showing their respective places of manufacture, so far as known to said grand jurors, is as follows, to wit: The National Cash Register Company, a corporation, Dayton, Ohio. [Then follow names of 32 other companies.]</p> <p>That of the total amount of manufacturing of such cash registers done by all of said concerns during said twenty years, said the National Cash Register Company has done from approximately eighty per cent, early in said period to approximately ninety-five per cent, at the latter end thereof.</p> <p>That said concerns, during said twenty years, have also respectively sold the greater portion of the cash registers so manufactured by them, some to users of and some to dealers id such cash registers, whose several places of use and business have been situated in all the other states of the United States than those wherein such cash registers have been so manufactured by said concerns respectively, and have consigned for sale other such cash registers to such dealers, and to their own agents, in such other states; that in pursuance of such sales and upon such consignments, said concerns have respectively been continually shipping such cash registers to such users, dealers and agents in such other states; the number of such users, agents and dealers being so great, as said grand jurors, upon their said oath, charge the fact to be, as to make it impracticable, if not impossible, to set forth a list of them in this indictment; that, by reason of the great cost of such cash registers and as a means of furthering the sales thereof to users, it has been customary for said concerns and dealers to sell such cash registers to users upon deferred payments in installments; and that in and by so manufacturing, selling, consigning and shipping such cash registers into other states than the state of manufacture, each of said concerns has been engaged in trade and commerce among the several states of the United States within the meaning of the act of Congress approved July 2, 1890, and entitled “An act to protect trade and commerce against unlawful restraints and monopolies.”</p> <p>And the grand jurors aforesaid, upon their oath aforesaid, do further present, that said the National Cash Register Company has had certain persons for its principal officers and agents, each of whom, from the day of his becoming such officer and agent to the day of the finding and presentation of this indictment, or, in case he has ceased to be such officer and agent, from the day of his becoming such officer and agent to the day of his ceasing to be such, has been actively engaged in the management of the business and affairs of said the National Cash Register Company, under its authority, and to the full extent of his authority as such officer and agent; and that a list of the names of such of said persons as are known to said grand jurors, showing, so far as known to said grand jurors, the character of their several offices and agencies, and the time of their becoming such officers and agents respectively, and, in case they have ceased to become such officers and agents, the time when they so ceased to become such officers and agents (Christian names unknown to said grand jurors being indicated by initials), is as follows, that is to say: John H. Patterson, President, 1892-1912. [Here follows list of many officers and agents, with dates of service, including defendants charged.]</p> <p>And the grand jurors aforesaid, upon their oath aforesaid, do further present, that said John H. Patterson, Edward A. Deeds, George C. Edgeter, William F. Bippus, William H. Muzzy, William Pflum, Alfred A. Thomas, Robert Patterson, Thomas J. Watson, Joseph E. Rogers, Alexander C. Burned, Frederick S. High, Pliny Eves, Arthur A. Wentz, George E. Morgan, Charles T. Walmsley, Charles A. Snyder,' Walter Cool, M'yer N. Jacobs, Mont. L. Lasley, Earl B. Wilson, Jonathan B. Hayward, Alexander W. Sinclair, John J. Range and Edgar Park, alias C. D. Foote, and M. G. Keith, W. M. Cummings, J. C. Laird, W. C. Howe and E. H. Epperson, whose Christion names are to said grand jurors unknown, hereinafter referred to as defendants, being as said grand jurors, upon their said oath, here charge they have been, the persons who have, by virtue of their being such' officers and agents of said the National Cash Register Company, controlled and directed the business and affairs of said the National Cash Register Company, unlawfully have, continuously and at all times from the days when, as in this count above set forth, they respectively became officers and agents of said the National Cash Register Company to the day of the finding and presentation of this indictment, or to the days when they ceased to be such officers and agents, in cases where they did so cease to be such officers and agents, at and within said Western Division of said Southern District of Ohio, knowingly engaged and consciously participated in a corrupt conspiracy in undue, unreasonable, direct and oppressive restraint of said interstate trade and commerce so as aforesaid, during such times, carried on by the several concerns in this count above named other than said the National Cash Register Company, each of said defendants then and there well knowing, as he then and there did well know, all the premises in this indictment aforesaid, that is to say, a conspiracy to restrain, and which during and throughout such times has in fact restrained, said last-mentioned trade and commerce by divers unfair, oppressive, tortious, illegal and unlawful means, and means which, consideration being given to the advantage over said other' concerns held by said the National Cash Register Company in consequence of its resources being, as they were, so great as compared with those of such other concerns respectively, have unlawfully, wrongfully and irresistibly excluded others from engaging in that trade and commerce, none of which has been justified or warranted by any letters-patent, a description of which conspiracy and means is now here set forth: /</p> <p>Intending to obstruct, restrict and restrain the free flow of said interstate trade and commerce so carried on by said concerns other than said the National Gash Register Company, and compel those concerns either to go out of business or to sell and transfer their business and their facilities and instrumentalities for carrying it on to said the National Cash Register Company, so that said the National Cash Register Company could, as in most cases it in fact did, discontinue the business and the use of the facilities and instrumentalities so acquired by it, and thereby effectually and inevitably to eliminate and prevent all competition of such other concerns with said the National Cash Register Company (all of such other concerns being hereinafter referred to as competitors), said defendants, in their several capacities as such officers and agents of said the National Cash Register Company, have, by concerted action and continuous endeavor carried on the business and affairs of said the National Cash Register Company upon a plan involving—</p> <p>1. The inducing, hiring and bribing of employés and ex-employés of said competitors of said the National Cash Register Company deceitfully and wrongfully to disclose to said the National Cash Register Company the secrets of the business of the concerns by which they were respectively employed, or had been employed, particularly those relating to prospective buyers of cash registers, to customers who had ordered such cash registers, to those who had purchased but had not yet fully paid for such cash registers, to the shipment of cash registers to such customers and to agents and dealers, to the volume of business being done and the places where it' was being done by such competitors, to inventions pertaining to cash registers and to drawings, specifications, claims and applications for patents for such inventions, and to the financial condition and connections of such competitors;</p> <p>2. The inducing, hiring and bribing of employés of carters, truckmen, express companies, railroad common carriers, telegraph companies and' telephone companies, wrongfully and unlawfully to disclose to said the National Cash Register Company the secrets of the business of such carters, truckmen, express companies, railroad common carriers, telegraph companies and telephone companies, pertaining to the carriage and transportation of cash registers for such competitors, including the number of such cash registers carted or shipped and the names and addresses of the consignees thereof, and pertaining to communications between such competitors and their agents and customers concerning the business of such competitors;</p> <p>S. The instructing and requiring all sales agents of said the National Cash Register Company to ascertain and report to said the National Cash Register Company all facts and details pertaining to the business and activities of said competitors, and particularly of competitors newly coming into the competitive field, and .the employing of agents especially so to do;</p> <p>4. The using of the influence of said the National Cash Register Company and of its agents with, and the making of> unwarranted and false statements to, banking and other institutions, to injure the credit of said competitors and prevent their securing accommodations of money, credit and supplies convenient and necessary to the carrying on of their business;</p> <p>5. The instructing and requiring of all sales agents of said the National Cash Register Company .to interfere with, obstruct and prevent, in every way possible, sales of such competitive cash registers by said competitors, and by-agents of said competitors, and by dealers in cash registers, and by any and all means to bring about sales of the cash registers of said the National Cash Register Company, and also the displacement of such competitive cash registers and the substitution of-the genuine cash registers of said the National Cash Register Company therefor in the hands of users of cash registers; and particularly by making to prospective purchasers of such competitive cash registers false and unwarranted statements derogatory of the same, and false, libelous and unwarranted statements reflecting injuriously upon the business character and financial credit of such competitors and upon their ability and intention to perform their undertakings and make good their warranties and promises with reference to the sufficiency, operation, repair and maintenance of their said competitive cash registers, and offering .to sell and selling, to such prospective purchasers of cash registers from said competitors, genuine cash registers of said the National Cash Register Company at prices much less than the regular and standard prices therefor and upon unusually favorable terms as to payments and deferred payments; by inducing, through ■such false, libelous and unwarranted statements and through said unusual offers, persons who had already ordered such .competitive cash registers to cancel such orders and purchase the genuine cash registers of said the National Cash Register Company; by inducing, through such false, libelous and unwarranted statements- and through such unusual offers, and through offers to make, and making, further reductions in prices of said genuine cash registers of said the National Cash Register, Company equivalent to the amounts paid towards the purchase of such competitive cash registers, persons who had purchased, but only partially paid for, such competitive cash registers to repudiate their contracts of purchase with said competitors, and refuse to pay balances due upon such competitive cash registers, and return the same to such competitors; by inducing, through such false, libelous and unwarranted statements, in some cases persons who had bought and paid for-such competitive cash registers, and in other cases persons who had only partially paid for such cash registers, to surrender the same to said the National Cash Register Company in exchange for genuine cash registers of that company upon such basis that those persons would lose nothing on account of their having so purchased such competitive cash registers, for the purpose of exhibiting, and thereupon actually exhibiting, such competitive cash registers, so obtained in exchange, in the windows of stores wherein genuine cash registers of said the National Cash Register Company were on sale, bearing placards, in some cases with the word “junk” printed thereon, in other cases with the words “For Sale at Thirty Cents on the Dollar” printed thereon, and in still other cases bearing words of similar inn port derogatory of and damaging to said 'competitive cash registers; by exhibiting and offering for sale to some prospective purchasers of cash registers, cash registers in similitude of any particular competitive cash register any such prospective purchaser was contemplating buying, and this at a price in all cases much lower than the regular price of such competitive cash register and in some eases at a price much less than the manufacturer’s cost of such competitive cash register, which cash register so exhibited and offered for sale to such prospective purchaser as. aforesaid was one manufactured by said the National Cash Register Company, solely as a so-called “knocker,” in such close similitude of the competitive cash register in question as to enable the sales agents of said the National Cash Register Company to represent to such prospective purchaser, and impel such x>rospective purchaser to believe, as was often done, that it was in fact a cash register of such cheap and poor construction that it would be a waste of money to purchase it or the competitive cash register .to which it was similar, such manufacture of such “knocker” by said the National Cash Register Company being discontinued when it was no longer useful as a “knocker”; by exhibiting and offering for sale, to other prospective purchasers of cash registers, cash registers in similitude of any particular cash register any such irrespective purchaser was contemplating buying, and this at a price in all cases much lower 'than the regular price of such competitive cash register and in some cases at a price much less than the manufacturer’s cost of such competitive cash register, which cash register so exhibited and offered for sale to such prospective purchaser as last aforesaid was in each ease one manufactured by said the National Cash Register Company in such close similitude of the competitive cash register in question as to enable the sales agent of said the National Cash Register Company to represent .to such prospective purchaser, and impel such prospective purchaser to believe, as was often done, it to be a counterpart thereof, when in fact it was a cash register having weak and defective interior mechanism and parts, and one manufactured by said the National Cash Register Company, with such weak and defective mechanism and parts, solely as a so-called “knocker,” and for the very purpose of being so exhibited and offered for sale and enabling its sales agents to exhibit to such prospective purchaser such weak and defective mechanism and parts, and falsely claim that the competitive cash register to which it was similar had the same weak and defective mechanism and parts, as an argument against his purchasing any such cash register and one in favor of his purchasing a genuine but more expensive cash register manufactured by said the National Cash Register Company, and at any rate for the purpose of shortly bringing about a sale of such genuine cash register to such purchaser, in ease he insisted on purchasing such “knocker,” through the'failure of such “knocker” to operate, and for no other purposes, such manufacture of such last-mentioned “knocker” by said the National Cash Register Company being also discontinued when it was no longer useful as a “knocker”; and, finally, by instructing and requiring sales agents of said the National Cash Register Company, and persons employed for that purpose by that company, secretly to weaken and injure the interior mechanism, and remove and destroy parts of such mechanism, of such competitors’ cash registers in actual use by purchasers as they could by any means get their hands upon, and this for the purpose of causing, as in many cases it actually did cause, persons who had purchased such competitive cash registers to become dissatisfied with them and substitute for them genuine cash registers manufactured by' said the National Cash Register Company;</p> <p>6. The making, in some eases, by said the National Cash Register Company, to such competitors, and to purchasers and prospective purchasers of such competitive cash registers, of threats to begin suits in the courts against them for infringing and for having infringed its patent rights pertaining to its genuine cash registers, when as said defendants each well knew, no such patent rights existed and no such suit was contemplated or would really be begun, and such threats were made merely to harass such competitors, purchasers and prospective purchasers, and deter such competitors from manufacturing and selling such competitive cash registers in such interstate trade and commerce, and such purchasers from using, and such prospective purchasers from buying and using, such competitive cash registers;</p> <p>7. The beginning, in other cases; by said the National Cash Register Company, against such competitors, and against purchasers of such competitive cash registers, of suits for infringement of patent rights of said the National Gash Register Company pertaining to its genuine cash registers, when in those cases, as said defendants each well knew, no patents upon which such suits could be jnaintained were in existence or owned or controlled by said the National Cash Register Company, and when, as said defendants each well knew, none of those suits would be further pressed, but all such suits would be kept pending only as long as -they served the purpose of harassing such competitors and purchasers;</p> <p>8. The organizing of cash-register manufacturing concerns and cash-register sales concerns, and the maintaining of them, ostensibly as competitors of said the National Cash Register Company, but in fact as convenient instruments for use in gaining the confidence and obtaining the secrets of said real competitors of said the National Cash Register Company and accomplishing the objects of said unlawful conspiracy; and -the making of such use, also, of competitive concerns the ownership and control of which said the National Cash Register Company from time to time secured by the means aforesaid, and this as long as the fact of such ownership and control by said the National Cash Register Company could be kept secret;</p> <p>9. The inducing, by offers of much greater compensation than they were receiving from said competitors respectively, agents and servants of said competitors, and dealers patronizing said competitors exclusively, -to leave the employment of said competitors or cease patronizing said competitors; to enter the employment of or patronize exclusively, said the National Cash Register Company; and this principally for the purpose of embarrassing said competitors and restraining their said interstate trade and commerce;</p> <p>10. By applying, and causing applications to be made, for letters-patent of the United States, in some cases upon the cash registers of said competitors and in other cases upon improvements upon such competitive cash registers, and this merely for the purpose of harassing such competitors by interference proceedings and suits and threats to institute such proceedings and suits; and—</p> <p>11. The using ofp or originating and using of, and the instructing and requiring of such agents and sales agents of said the National Cash Register Company to use, or to originate and use, such other unfair, oppressive, tortious, illegal and unlawful means, unlawfully, wrongfully and irresistibly excluding other concerns beside said the National Cash Register Company from engaging in said interstate trade and commerce, as might at any time become, or appear to said defendants or agents or sales agents to- be, necessary or convenient (consideration being had for the exigencies of said interstate trade and commerce arising from its being carried on between widely-separated places under many differences of condition and demand) for engaging in and accomplishing the above-described objects of said unlawful conspiracy; a description of which said means last aforesaid, other than that they were similar in character to the means hereinabove described, said grand jurors are unable to set forth in this indictment because, as they charge the fact to be, such means were so numerous in kind and so shifting in character as to make such description impossible.</p> <p>And so' the grand jurors aforesaid, upon their oath aforesaid, do say, that, said John H. Patterson, Edward A. Deeds, George O. Edgeter, William F. Bippus, William H. Muzzy, William Pflum, Alfred A. Thomas, Robert Patterson, Thomas J. Watson, Joseph E. Rogers, Alexander O. Plarned, Frederick S. High, Pliny Eves, Arthur A. Wentz, George E. Morgan, Charles T. Walrnsley, Charles A. Snyder, Walter Cool, Myer N. Jacobs, Mont. L. Lasley, Earl B. Wilson, Jonathan B. Hayward, Alexander W. Sinclair, John J. Range and Edgar Park, alias C. D. Foote, and M. G. Keith, W. M. Cummings, J. C. Laird, W. C. Ilowe and E. H. Epperson, during the three years next preceding the finding and presentation of this indictment, at and within said Western Division of said Southern District of Ohio, in manner and form in this count of this indictment aforesaid, unlawfully have knowingly engaged and consciously participated in a conspiracy in undue, unreasonable, direct and oppressive restraint of trade and commerce among the several states in cash registers, and one to restrain, and which has restrained, that trade and commerce by unfair, oppressive, tortious, illegal and unlawful means, and means which have unlawfully, wrongfully and irresistibly excluded others from engaging in that trade and commerce; against the peace and dignity of the United States, and contrary to the form of the statute of the same in such case made and provided.</p> <p>Second Count.</p> <p>And the grand jurors aforesaid, upon their oath aforesaid, do further present, that said John I-I. Patterson [and the other defendants named in the ■first count], at divers times during the three years next preceding the finding and presentation of this indictment, at and within said Western Division of said Southern District of Ohio, under the circumstances and conditions, and by use of the means, set forth and described in the first count of this indictment, unlawfully have, by drawing to said the National Cash Register Company and causing that company to grasp it, monopolized a part of the trade and commerce among the several states in cash registers, that is to say, that part of said trade and commerce which, but for their use of those means, in carrying on the business and affairs of said the National Cash Register Company in the manner in said first count specified, would, during that period, have been secured or retained, as a matter of lawful right, by the divers concerns, other than said the National Cash Register Company, mentioned in said first count as having carried on business during said -three years; said means being, as in said first count shown and charged, unfair, oppressive, tortious, illegal and unlawful under said circumstances as against said other concerns, and of a nature, under said circumstances, irresistibly to exclude those concerns from engaging in that trade and commerce; said grand jurors being unable, by reason of the great extent -thereof, and because the same are unknown to them the said grand jurors, to enumerate or describe the items of such trade and commerce in cash registers so monopolized by said .defendants; and the allegations of said first count descriptive of such cash registers, of said interstate trade and commerce in the same and the concerns engaged therein, and of the means employed by said defendants to restrain said interstate trade and commerce, and the allegations of said first count as to knowledge, intent and overt acts on the part of and by said defendants, being by said grand jurors incorporated in this count by reference as fully as if they were repeated in this count as part of the charge of monopolizing in this count made; against the peace and dignity of the United States, and contrary to the form of the statute of the same in such ease made and provided.</p> <p>Third Count.</p> <p>And the grand jurors aforesaid, upon their oath aforesaid, do further present, that said John H. Patterson [and the other defendants named in the first count], having before the period of three years next preceding the finding and presentation of this indictment, in the manner, by the means, and under the circumstances and conditions, mentioned and described in the first count of this indictment,' engaged, as said grand jurors, upon their said oath, here'charge they did engage, in the unlawful conspiracy in said first-count described, and having, in and by so engaging in that unlawful conspiracy, drawn as said grand jurors, upon their said oath, here charge they did draw, ■to said the National Cash Register Company, and caused, as said grand jurors, upon their said oath, charge they did cause, said the' National Cash Register Company to grasp, a part of the trade and commerce among the several states in cash registers, that is to say, that part of said .trade and commerce which, but for their so engaging in that unlawful conspiracy and their use of those means, in carrying on the business and affairs of said the National Cash Register Company in the manner and under- the circumstances in said first count specified, would have been secured or retained, as a matter of lawful right, by the divers concerns, other than said the National Cash Register Company, mentioned in said first count as having carried on business before said period of three years (said means being, as in said first count shown and charged, unfair, oppressive, tortious, illegal and unlawful, under said circumstances, as against said other concerns, and of a nature, under said circumstances, irresistibly to exclude those concerns from engaging in that trade and commerce), and each of said defendants well knowing all the premises in this indictment aforesaid, unlawfully have, .throughout said period of three years next i>receding the finding and presentation of this indictment, continued to hold, conduct and carry on said interstate business of said the National Cash Register Company, so by said' means before said period augmented, and thereby have monopolized said interstate trade and commerce in cash registers; said grand jurors being unable, by reason of the great extent thereof, and because the same are unknown to them the said grand jurors, to enumerate or describe the items of such trade and commerce in cash registers so as in this count aforesaid monopolized by said defendants ; and the allegations of said first count descriptive of such cash registers, of said interstate trade and commerce in the same and the concerns engaged therein before said period of three years, and of the means so employed by said defendants to restrain said interstate trade and commerce, and draw to said .the National Cash Register Company, and cause that company to grasp, said interstate commerce, and also the allegations of said first count as to knowledge and intent on the part of- said defendants, being, by said grand jurors, incorporated in this count' by reference as fully as if they were repeated in this count as part of the charge of monopolizing in this count made against said defendants; against the peace and dignity of the United States, and contrary to the form of the statute of the same in such case made and provided.</p>

In Equity. Suit by the Louisville & Nashville Railroad Company against Oliver H. Hughes, Oliver P. Gothlin, and John C. Sullivan, as members of the Public Service Commission of Ohio. On motion for interlocutory injunction.

<p>1. Escrows (§ 1*) — Wiiat Constitutes — Condition—Necessity of Writing —“Escrow.”</p> <p>A deed in “escrow” is one that has been delivered to a stranger with, directions that he shall deliver to the grantee on .performance by the latter of some condition, which may he either oral or written or partly oral and partly written, as to the payment of a sum of money, or the observation of some obligation, or the happening of some event; the grantor reserving the right to reclaim the deed if the condition is not fulfilled, or the event does not happen.</p> <p>[Ed. Note. — For other cases, see Escrows, Cent. Dig. §§ 1-3, 5; Dec. Dig. § 1 *</p> <p>For other definitions, see Words and Phrases, vol. 3, pp. 2161-2467.]</p> <p>2. Specific Performance (§ 25*) — Contract to Convey — Execution of Deed.</p> <p>Mere execution of a deed by a vendor to a purchaser, without delivery, unless deposited as a perfect escrow, is insufficient,to constitute a contract to convey which can be made the subject of specific performance.</p> <p>[Ed. Note. — For other cases, see Specific Performance, Gent. Dig. §§ 56-58, 60; Dec. Dig. § 25.*]</p> <p>3. Frauds, Statute of (§ 103'*) — Bale of Band — Written Contract.</p> <p>Correspondence between the parties to a sale of land, together with a deed sent by the vendor to a bank describing the land referred to, with directions for delivery to the vendee on the payment of the price, held to constitute an enforceable contract in writing for the sale of the land.</p> <p>[Ed.’ Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 192-208; Dec. Dig. § 103.*]</p> <p>4. Corporations’ (’§ 425*)' — Officers—Authority—Conveyance of Dand— Estoppel.</p> <p>The by-laws of defendant investment company authorized its president, with the approval of the other members of the finance committee, which consisted of the president and two other members of the board of" directors, to buy and sell real property without further specific authority from the hoard. By article 7 the president was made general manager with full power to buy real estate or anything which the company was entitled to hold, buy, or sell, subject to the approval of the finance committee, and'by article 11 it was made the duty of such committee to advise with and approve purchases and sales made by the president. Thé president was in control of the entire business of the company, and he; his son, and wife were the owners of practically the whole of the capital stock; the son acting as secretary. Held that, the president having conducted the business of the company as though he were vested with full power to do all things requisite to the purchase and sale of real property, the corporation was estopped to deny that he had authority to hind it by a contract for the sale of real estate, and with the secretary to execute a deed to convey the title.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1G97-1701; Dec. Dig. § 425.*]</p>

In Equity. Suit by George E. Buell against the Kanawha Lumber Corporation. On applications by Willcox & Willcox, counsel for complainant, and by Joseph A. McCullough, special master, for allowance of fees from fund in court.

<p>In Admiralty. Suit by the Davidson Steamship Company, owner of the barge Chieftain, against the steamer Lackawanna, the Buffalo Transit Company, claimant.</p>

<p>In Bankruptcy. In the matter of bankruptcy proceedings against the Jaysee Corset Company. On motion to prevent the bankrupt’s trustee from selling the trustee’s right, title, and interest in and to the good will of the bankrupt, and in the trade-names “Jaysee” and “J. C.” and the trade-marks “Jaysee” and “J. C.”</p>

In Equity. Bill by the Pennsylvania Steel Company and another against the New York City Railway Company and another, and three other causes, for the administration of the railway company’s property in insolvency. Application for modification of orders permitting the filing of certain claims out of time.

Petition of the Brooklyn Trust Company, as one of the executors of the estate of L. J. Busby, for payment over of the surplus of the proceeds of the sale of the yacht Duchess, and cross-petition of Rudi De Graff, praying payment of the same fund to him. On motion to confirm report on orders of reference to take proof of the facts of the petitions and to report thereon.

<p>1. Pleading (§ 214*) — Demurrer—Construction.</p> <p>As against a demurrer, the facts well pleaded in the petition must be takeit as .true.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 525-534; Dec. Dig. § 214.*]</p> <p>2. Vendor and Purchaser (§ 47*) — Contract op Sale — Breach—Wiiat Law Governs.</p> <p>The law of the state where land contracted to be sold is situated governs controversies growing out of the contract.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 79; Dec. Dig. § 47.*] '</p> <p>3. Vendor and Purchaser (§ 351*) — Contract op Sale — Breach—Vendor’s Liability.</p> <p>Dnder the Kentucky law, a vendor, in the absence of fraud or bad faith, failing to convey, is liable to the vendee for the difference between the contract price and the value of the land at the making of the contract, instead of at the time for conveyance, and also for such expense as the vendee might reasonably and properly have incurred under the contract.</p> <p>[Ed. Note. — For other eases, see Vendor and Purchaser, Cent. Dig. IS 1017, 1047-1058; Dec. Dig. § 351.*]</p> <p>4. Vendor and Purchaser (§ 349*) — Remedy op Vendee — Damages—Petition.</p> <p>Where a vendor of land in Kentucky, without fraud or bad faith, failed to convey because of a failure of title, a complaint by the vendee for breach of contract, failing to allege that at the time the contract was made the land was worth more than the contract price, and failing to show that -expenses alleged to have been incurred by him in connection with the contract were reasonable, and such as he was authorized to incur before maps and abstracts had been delivered, was demurrable.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 1039-1042; Dee. Dig. § 349.*]</p>

Appeals from the Circuit Court of the United States for the District of Colorado; Robert F. Lewis, Judge. Suit in equity by the Mercantile Trust Company of New York against the City of Denver and others and the City and County of Denver. Decree for complainant, and both parties appeal.

Appeals from the Circuit Court of the United States for the Western District of Missouri; John P. Philips, Judge. Creditors’ suit in equity by the Cambria Steel Company against the Kansas City Suburban Belt Railroad Company, Guardian Trust Company, and others. From the' decree, Guardian Trust Company and Central Improvement Company and others appeal.

<p>1. Mines and Minerals (§ 38*) — Conflicting Locations — Placer and Lode Claims — Priority—Determination—Nature of Action.</p> <p>Where complainants located certain lode claims within the boundaries of prior located placer claims, actions to determine the conflicting rights of the claimants were properly instituted in the form of actions to determine adverse claims, authorized by Rev. St. §§ 2325, 2326 (U. S. Comp. St. 1901. pp. 1429, 1430).</p> <p>. [Ed. Note. — For other cases, see Mines and Minerals, Cent. Dig. §§ 87%-113; Dec. Dig. § 38.*]</p> <p>2. Mines and Minerals (§ 38*) — Conflicting Locations — Nature of Ground —Determination—1 urisdiction.</p> <p>Where complainants located certain lode claims within the limits of prior located placer claims, and thereafter instituted actions to determine their adverse claims to such locations, the determination of the question whether the ground was subject to location as placer or lode was not within the exclusive jurisdiction of the Land Department, but was determinable by the court in such actions.</p> <p>[Ed. Note. — For other cases, see Mines and Minerals, Cent. Dig. §§ 87%-113; Dec. Dig. § 38.*</p> <p>Extent and boundaries of mining claims or locations, see note to Jones v. Wild Goose Mining & Trading Co., 101 C. C. A. 355.]</p> <p>3. Mines and Minerals (§ 27*) — Mining Claim — Location—Entry.</p> <p>While a valid claim ,to unappropriated mining ground cannot be instituted while it is in the possession of another, who has the right to its possession under an earlier lawful location, nor can such a claim be initiated by forcible or fraudulent entry on land in possession of one who has no right either to the possession or to the title, yet every competent locator has the right to initiate a lawful claim to unappropriated ground by a peaceable adverse entry upon it while it is in the possession of those who have no superior right to acquire the title or to hold possession.</p> <p>[Ed. Note. — For other cases, see Mines and Minerals, Cent. Dig. §§ 64, 65; Dec. Dig. § 27.*]</p> <p>4. Mines and Minerals (§ 16*) — Nature of Location — “Vein” or “Lode”— “Placer.”</p> <p>Rev. St. § 2320 (U. S. Comp. St. 1901, p. 1424), provides for the location of mining claims on veins or lodes of quartz or other rock in place, bearing gold, silver, cinnabar, lead, tin, copper, or other valuable deposits. Section 2329 (TJ. S. Comp. St. 1901, p. 1432) provides for the location of “placers,” including all forms of deposit excepting veins of quartz or other rock in place. Held that, since the term “vein or lode” is not used in a geological sense, but rather to mean a continuous body of mineralized rock lying within any other well-defined boundaries on the earth’s surface and under it, which boundaries clearly separate it from the neighboring rock, and the term “placer” denotes ground within defined boundaries which contains mineral in its earth, sand, or gravel, or deposits not fixed in rock, but which may be collected by washing or amalgamation without milling, ground containing a bed of calcium phosphate or phosphate rock lying in horizontal veins of various thicknesses, from a few inches to five or six feet, having a dip and strike, and firmly fixed in the mass of the mountain between strata of limestone, chert, and shale, is subject to location only as containing a “lode” or “vein,” and not as a “placer” location.</p> <p>[Ed. Note. — For otter cases, see Mines and Minerals, Cent. Dig. §§ 21-23; Dec. Dig. § 16.*</p> <p>For otter definitions, see Words and Ptrases, vol. 6, pp. 5395, 5396; vol. 8, pp. 7286, 7287; vol. 5, pp. 4223-4226.]</p>

Carpenter, Judge. Action at law by George Lindsay against the Grand Trunk Western Railway Company. Judgment for plaintiff, and defendant brings error. Defendant in error, herein called plaintiff, was a switchman on defendant’s railroad. On the night of September 21, 1908, he was severely injured by having his hand and arm caught and crushed while trying to lock the coupler between two freight cars; amputation of the arm near the shoulder being found necessary.

<p>In Error to the District Court of the United States for the District of Kansas; John C. Pollock, Judge.</p> <p>A. M. Winters was convicted of sending illegal matter through the mails, and he brings error.</p>

Campbell, Judge. , Suit by Percy M. Webb and the French-Webb Live Stock Commission Company against Rene E. Stone and another to foreclose a mortgage on certain real estate owned by. defendant Grace E. Stone, with cross-action by defendants Stone to have the mortgage canceled and their title quieted as against such mortgage.

<p>Appeal from the Circuit Court of the United States for the District of Utah; John A. Marshall, Judge.</p> <p>Suit by Russell Sage Raphael against the Wasatch & Jordan Valley Railroad Company and others. Judgment for defendants, and plaintiff appeals.</p>

Amidon, Judge. Actions, tried together on the same evidence, by Elias Olson and others against the Canadian Northern Railway Company. Judgment for plaintiffs, and defendant brings error.

<p>In Error to the District Court of the United States for the Eastern District of Missouri; David P. Dyer, Judge.</p> <p>Criminal prosecution by the United States against Giboney Houck and others. From a judgment of conviction, defendants bring error.</p>

<p>In Error to the Circuit Court of the United States for the Eastern District of Missouri; David P. Dyer, Judge.</p> <p>Action at law by the Cape Girardeau & Thebes Bridge Terminal Railroad Company against Douglas Jordan and others. Judgment for defendants, and plaintiff brings error.</p>

<p>Petition for Mandamus to the District Court of the United States for the Southern District of Georgia; Emory Speer, Judge.</p> <p>In the matter of the petition of C. S. Henry for a writ of mandamus to Hon. Emory Speer, District Judge for the Southern District of Georgia, and to said District Court.</p> <p>C. S. Henry petitions this court for a rule against Hon. Emory Speer, United States District Judge for the Southern District of Georgia, and against the District Court of the United States for that district, to show cause why writ of mandamus should not issue commanding them to send an authenticated copy of a certain affidavit of disqualification filed by.C. S. Henry in the equity cause of O. S. Henry v. E. B. Harris, pending on the docket of that court and the proceedings had thereon, to the senior circuit judge for the Fifth Circuit then in the circuit, and to desist from retaining or exercising any further jurisdiction in said cause.</p> <p>The complainant in the court below sought to avail himself of the provisions of section 21 of the Judicial Code of the United States (January 1, 1912), and. made and filed an affidavit accompanied by certificate of counsel of record, whereby he undertook to disqualify the judge of the district from sitting in and deciding the cause in which he was complainant because of alleged bias and prejudice of the judge. This affidavit is as follows:</p> <p>■ “Before .me, an officer duly authorized by law to administer oaths, appeared the undersigned, C. S. Henry, who on oath deposes and says -there is now' pending in the Circuit Court of the United States for the Western Division lot the -Southern District of Georgia a bill for specific performance filed by the deponent against one E. B. Harris. An order of reference was duly entered in said case directing J. 3ST. Tally, standing master in chancery, to hear evidence and submit an opinion to the court both on the law and the facts. After evidence taken and arguments of counsel, the master found in favor of the complainant. Exceptions were filed to said report, and are now pending before the Circuit Court, -the Honorable Emery Speer, Judge. Deponent avers that it is his honest belief that he cannot get a fair and impartial trial before the said judge, the Honorable Emery Speer, by reason of prejudice and bias against him and in favor of the opposite party to said suit, for the following reasons: Deponent avers that after suit, or after the bill was filed and the report of the standing master, involuntary petition in bankruptcy was filed against the said E. B. Harris; trustee selected and in due time was made a party to this suit. That on information and belief, after the election of said trustee, the Honorable Emery Speer rendered, or rather delivered, to the newspapers an opinion relative to the above-entitled cause, a copy of which is hereto attached, marked ‘Exhibit A’ and made a part of this affidavit, in which practically every issue is prejudged and determined by the said judge. This opinion, as deponent is informed and believes, was written before the above-named ease had been assigned for trial, without the report of the master, or the evidence in said cause having been read by the judge and before any arguments of counsel. Deponent avers that in his judgment and belief this opinion very clearly indicates the bias ,and prejudice of the said judge against deponent’s right to recover, and precludes for him the possibility of a fair and impartial trial. Deponent, as he is informed by counsel, could not avail himself of this privilege prior to the first of January, nineteen hundred and twelve, in that said law did not go into effect until that day, and for the further reason that this opinion above referred to was not delivered until December —, 1913.”</p> <p>It appears that, after filing this affidavit with certificate of counsel, the attorneys for the petitioner moved the judge to have an authenticated copy thereof forthwith certified to the senior circuit judge, then present in the circuit. Thereupon the judge proceeded to determine as to the legal sufficiency of the affidavit, and also to hear evidence upon the question of the existence vel non of -the bias or prejudice on his part as charged and alleged therein. This hearing resulted in an order overruling the petitioner’s motion, dismissing the affidavit, and assigning the cause in which the affidavit was filed for hearing on its merits. The cause of action in which the affidavit was filed arose and was commenced long prior to January 1, 1912, the time when the Judicial Code by its terms took effect and went in force.</p>

<p>Appeal from the District Court of the United States for the Southern District of Georgia; Emory Speer, Judge.</p> <p>Suit in equity by C. S. Henry against E. B. Harris and Cook Clayton, trustee in bankruptcy for E. B. Harris. Decree (191 Fed. 868) for defendants, and complainant appeals.</p> <p>This is an appeal from an order passed by the court below dismissing complainant’s bill for want of prosecution. Certain of the assignments of error submitted on this appeal are leveled at the action of the trial judge in assuming jurisdiction to make any order pertaining to the trial or disposition of this cause after the filing by complainant of an affidavit by which it was sought to disqualify the judge from further hearing or trying the cause. The questions raised by these assignments are treated and disposed of in an opinion this day filed in the ease of C. S. Henry, Petitioner, v. Emory Speer, District Judge, 201 Fed. 869. They will not again be considered, and reference is made to that opinion for our views.</p> <p>It appears that after issue was formed in the cause of C. S. Henry v. E. B. Harris by the filing of the bill of complaint, answer, and replication, upon motion of solicitors for complainant, it was referred to J. N. Tally, Esq., standing master, “to take evidence and make his findings, both of the evidence and as to the law of said cause, and report said findings to the court”; that, in pursuance of this order of reference, the standing master took the evidence and made his findings of fact and of law. and returned them into the clerk’s office. These findings both of fact and lav; were in favor of the complainant, the master finding that upon the facts shown the complainant was entitled to a decree of specific performance for the conveyance of certain property as prayed in his bill, and was also entitled to recover certain amounts as the rental value of the property. Thereafter the defendant E. B. Harris filed numerous exceptions to the master’s findings and conclusions. Later the defendant E. B. Harris was adjudged bankrupt, and Cook Clayton, trustee of the bankruptcy estate, was made party defendant to the cause. The court by order assigned the cause for hearing for a day and hour certain, and ordered that counsel for the respective parties be served with notice of such assignment. At the time fixed the court called upon the solicitors for the, complainant to proceed with the submission of the cause. They refused to proceed, and thereupon the court passed an order dismissing complainant’s bill for want of prosecution.</p>

<p>In Error to the District Court of the United States for the Eastern Division of the Northern District of Illinois; Kenesaw M. Landis, Judge.</p> <p>. Action at law by Elijah Watt Sells, surviving partner of the firm of Haskins & Sells, composed of Charles Waldo Haskins and Elijah Watt Sells, against the City of Chicago. Judgment for defendant, and plaintiff brings error.</p> <p>Plaintiff in error, surviving partner of the firm of Haskins & Sells, termed plaintiff herein, together with his said partner, entered into a written contract with defendant in error, hereinafter termed defendant, on the 1st day of March, 1901, whereby said firm agreed to make and complete an investigation, examination, and adjustment of all the special assessment accounts of the city, in accordance with specifications thereto .attached, within a period of 10 months from the commencement of the work. Said firm undertook to obtain all original documents necessary, and to search all the records required, whether such records contain other matter or not, to carry out said work, to rewrite all the records of special assessment accounts, do everything necessary in order to produce a complete and perfect record of each and every special assessment warrant of the city and arrange the same in such order as would make them convenient for public use and convenient and ready for reference. The term “special assessment” was to include all special assessments as they stood on April 30, 1901, including those of municipalities or parts thereof, which had been annexed to the city, so far as necessary to make a complete record. On its part "defendant agreed to pay $65,000 for the completed work from the appropriation made for that purpose.</p> <p>Defendant further agreed to furnish said firm immediate access to all records, vouchers, warrants, contracts, books of account, or other records or papers belonging to or in the custody of defendant, and provide them a place for their work. Clause 12 of the contract reads:.</p> <p>“It is further mutually understood and agreed that, in no event will said parties of the first part be allowed or paid for any extra work done or claimed to be done by them; and in no event will the compensation to be paid the said parties of the first part exceed sixty-five thousand ($65,000) dollars.”</p> <p>From the declaration it appears that said firm shortly afterwards entered upon the performance of their part of said contract; that after commencing the work said firm discovered that certain necessary records and papers were not in the defendant’s possession, and were not delivered to said firm, and that, in order to complete the task undertaken by said firm, it became necessary for them to resort to "records of the’state of Illinois and of the county of' Cook, and to investigate various other and outside sources of information and do a large amount of work not contemplated by the contract, which would ' have been unnecessary had the city complied with the contract; that, when notified by said firm that it was the duty of the city, under said ' contract, to furnish them all of said missing records and papers, defendant demanded that they complete said work under penalty of forfeiting their bond, which they had given to secure the performance of the contract by them, and the money deposited with the city for a like purpose, and take all necessary steps and do all necessary things to produce and create from contemporaneous sources, if necessary, such necessary records and documents as were missing including the investigation of the Cook county and Illinois records, etc.; that said firm, still insisting that defendant had breached the contract as above set out, completed the work called for by the contract; that in so doing it was necessary that said firm should examine, and they did examine, said outside records and various other outside sources of information, and do a large amount of uncompleted work; that the result was accepted by the defendant and the $65,000 was paid over as agreed.</p> <p>It further appears that by reason of the failure of the defendant to furnish such missing records and documents said firm was delayed for ¡a long period (two years) in doing said work, was compelled to construct and repláce a great number and amount of records and documents, and was obliged to employ extra help far beyond what would have been otherwise necessary.</p> <p>The declaration further sets out the contract, avers the legal obligation of defendant to keep all the records, warrants, and other documents pertaining to special assessments, charges that the same were assumed to be so kept, and that said firm was only required to deal with what records and documents were stored in the vaults and storage places of defendant, and not with county and state records.</p> <p>The defendant declined'to make any further payment, and plaintiff brought suit to recover damages so sustained, laid by plaintiff at the sum of $500,000.</p> <p>To the declaration defendant filed six pleas. The first plea sets out that if said agreement was made as construed by plaintiff the contract would have been void as in contravention of the constitutional provision regulating the amount of municipal indebtedness. The second plea sets out that there was no appropriation made for the payment of anything in excess of $65,000; and therefore, if the contract was made to pay the extra sum, it would have been void. The third plea alleges the statute requiring the advertising for and taking bids for such work, and charges that no bids for the work were taken; wherefore the agreement to pay such extra sum, if made, would have been void. The fourth and fifth pleas set up the failure to comply with said necessity of taking bids, etc., in accordance with the city ordinances, and the .want of action on said claim by the council, and its consequent invalidity. The sixth plea sets up the ordinance forbidding the payment for extra work, unless the council authorize it on the report of the commissioner of public work?, charges that no such action was had in the present case, and that therefore the claim of plaintiff is void. Plaintiff demurred to each of said pleas.</p> <p>On the hearing the court overruled the demurrer to the pleas and carried it back and sustained it to the declaration. Plaintiff thereupon -elected to stand by his declarationwhereupon the court entered judgment for defendant. To correct these alleged errors, this writ of error was sued out.</p>

Landis, Judge. Action at law by Harold Cramer, a minor, by his next friend, Harriet E. Stears, against the Parker Washington Company. Judgment for plaintiff, and defendant brings error.

. In Error to the Circuit Court of the United States for the Western District of Tennessee; Jno. E. McCall, Judge. Action by J. J. Long against the Yazoo & Mississippi Valley Railroad Company. Judgment for plaintiff, and defendant brings error.

McDowell, Judge. , Action at law by George H. Leonard & Co., to the use of Marden, Orth & Hastings, against John E. Roller, trading as the" Excelsior Oak Extract Company. Judgment for defendant, and plaintiffs bring error.

On Transfer from the Supreme Court of the State of New Mexico. Claim of John Aiello against E. C. Crampton, as trustee of the bankrupt estate of the Alexander Mercantile Company. From an order of the District Court reversing a referee’s order allowing the claim, and directing that the same be disallowed, claimant appealed to the Supreme Court of- the Territory of New Mexico, by which the same was transferred to the Circuit Court of Appeals.

<p>jL Courts (§ 405*) — Court or Appears — Jurisdiction—Extent or Review.</p> <p>The Circuit Court of Appeals, being a court of error only, can review only such errors in an action tried by the court as are presented by legal propositions presented to and ruled on by the trial court.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 1097-1103; Dec. Dig. § 405.*</p> <p>Jurisdiction of Circuit Court of Appeals in general, see notes to Lau Ow Bew v. United States, ,1 C. C. A. 6; United States Freehold Land & Emigration Co. v. Gallegos, 32 C. C. A. 475.]</p> <p>2. Appeal and Error (§ 846*) — Review—Presentation of Question to Tri- . al Court.</p> <p>Where an action is tried to the court, questions of law can be raised for review by writ of error only by first making seasonable objections to the admission, or rejection of evidence, and by requesting the court before the trial is ended to make declarations of law, and excepting to its refusal to do so, and to its declarations of law, if any, that do not accord with the propositions asked, in the same way as instructions to a jury would be requested, and exceptions taken to the giving or refusal thereof, if the ease had been tried to a jury.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3347-3362,3366; Dec. Dig. § 846.*]</p> <p>3. Appeal and Error (§ 1008*) — Findings of Trial Court — Effect.</p> <p>Where an action is tried to the court without a jury, the court’s finding, whether general or special, performs the same office as the verdict of a jury. :</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3955-3969; Dec. Dig. § 1008.*]</p> <p>4. Appeal and Error (§ 846*) — Sufficiency of Evidence — Review.</p> <p>Where an action is tried to the court without a jury, if the appellant desires the Circuit Court of Appeals to review the question whether there is substantial evidence to support the judgment, he must request the trial court to make a finding or enter a judgment in his favor.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3347-3362, 3366; Dec. Dig. § 846.*]</p>

<p>1. Appeal and Error (§ 846*) — Peesentinc Questions in Lower Court — Necessity.</p> <p>Tbe Circuit 'Court of Appeals being without jurisdiction in an action at law to try tbe case de novo, and being authorized to review only errors of law, where no request was made of the court at the close of trial by plaintiff for a finding or judgment in this favor dr for any findings of law or fact whatever, the Circuit Court of Appeals can review nothing except a ruling on a motion to remove the cause to the. state court made after a general finding for the defendant.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3847-3362; Dee. Dig. § 846.*]</p> <p>2. Courts (§ 309*) — Jurisdiction—Diversity op Citizenship — Nominal Parties.</p> <p>In an action of ejectment a defendant in possession of the premises not as tenant or lessee, but merely as caretaker for the other defendant, was merely a nominal party, whose citizenship did not affect tbe question ofi jurisdiction of tbe federal court.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 857; Dec. Dig. § 309.*</p> <p>Diverse citizenship as a ground of federal jurisdiction, see notes to Shipp v. Williams, 10 C. C. A. 249; Mason v. Dullagham, 27 C. C. A. 298.]</p> <p>3. Removal of Causes (§ 86*) — Proceedings—Waiver of .Objections.</p> <p>Imperfections in a petition for removal of a cause to the federal court which are formal and modal only are waived where no objection has been made to them.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. §§ 132, 166-179; Dec. Dig. § 86.*]</p>

<p>In Error to the District Court of the United States for the Eastern District of Pennsylvania; John B. McPherson, Judge.</p> <p>Action by Norman S. Huxley against James A. Hayes, Jr. Judgment for defendant (191 Fed. 943), and plaintiff brings error.</p>

In the matter of bankruptcy proceedings of the Globe Printing Company; William E. Riley, trustee. From an order sustaining a referee’s findings, denying the application of Grainger & Co. for a lien against the bankrupt’s assets for work and materials furnished for the bankrupt as lessee of certain premises on which it conducted its operations, claimant appealed, and filed a petition -to revise.

<p>1. Death (§ 18*) — Right of Action — “Children.”</p> <p>Under Act Pa. April 15,1851 (P. L. 674) § 19 (Purdon’s Dig. [13th Ed.] p. 3240, par. 3), and Act Pa. April 26, 1855 (P. L. 309) §-1 (3 Purdon’s Dig. [13th Ed.] p. 3241, par. 4), authorizing an action for death occasioned by unlawful violence or negligence for the benefit of a husband, widow, ehildren, or parents of the deceased, “children” are entitled to sue for the wrongful killing of their parents, whether the children are adults or minors, and though they were not a part of the household at the time of the killing.</p> <p>[Ed. Note. — For other cases, see Death, Cent. Dig. § 20; Dec. Dig. § 18.*</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1115-1141; vol. 8, p. 7601.]</p> <p>2. Death (§ 18*) — Killing of Mother — Action by Adult Son — Damages.</p> <p>Ah adult son, who had not been a member of his mother’s household for several years, could not recover damages for her wrongful death, under Act Pa. April 15, 1851 (P. L. 674) § 19 (Purdon’s Dig. [13th Ed.] p. 3240,' par 3), authorizing the maintenance of an action for death occasioned by unlawful violence or negligence, for the benefit of a husband, widow, children, or parents of the deceased, but allowing damages only to the extent of pecuniary loss, where there was no proof, either of the decedent’s manner of life, habits of expenditure, or sources of bounty, or the amount reasonably to be expected.</p> <p>[Ed. Note. — For other cases, see Death, Cent. Dig. § 20; Dee. Dig. § 18.*]</p> <p>3. Death (§ 18*) — Right to Sue — Pecuniary Loss. .</p> <p>Where an adult son, who had not been a member of his mother’s family for many years, was under no obligation to reimburse third persons for advances by them for funeral expenses after she had been negligently killed, the fact that they expected him to reimburse them, and that he intended to do so, was insufficient to show a pecuniary loss by him as the result of his mother’s death, so as to entitle him to maintain an action therefor.</p> <p>[Ed. Note. — For other cases, see Death, Cent. Dig. § 20; Dec. Dig. § 18.*]</p> <p>4. Death (§ 18*) — Action—Right to Sue — Nominal Damages.</p> <p>An adult son, who had not lived with his mother for many years at the time she was wrongfully killed, and had not suffered any substantial pecuniary loss by reason of her death, could not maintain an action in Pennsylvania therefor in order to recover nominal damages.</p> <p>[Ed. Note. — For other cases, see Death, Cent. Dig. § 20; Dee. Dig. § 18.*]</p>

States for the Middle District of Pennsylvania; Joseph Buffington, Judge. Action by the Citizens’ Wholesale Supply Company against Dennis H. Snyder and others. There was a judgment for defendants, and plaintiff brings error.

<p>1. Sales (§ 382*) — Contracts—Reeach—Evidence—Admissibility.</p> <p>Where, in an action for the refusal by a buyer of five car loads of eggs to receive three car loads, after receiving and paying for two car loads, the issue was whether the two car loads received were “current receipts eggs,” as stipulated in the contract of sale, and the evidence showed that the five car loads formed a part of a larger quantity accumulated in a cold storage warehouse and gathered from many sources of supply, evidence that tlje eggs composing the three car loads refused were “current receipts eggs,” together with the price received on a sale thereof for the buyer’s account, was admissible.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. § 1096; Dec. Dig. § 382.*]</p> <p>'-2. Sales (§ 381*) — Breach by Buyer — Action—Evidence.</p> <p>A seller, who sold goods for the account of the buyer, refusing to accept them, and who sued for the loss sustained on the resale, must show the price received on the resale.</p> <p>[Ed. Note. — For other eases, see Sales, Cent. Dig. § 1095; Bee. j>ig. § 381.*]</p> <p>3. Trial (§ 252*) — Instructions—Requests—Sufficiency.</p> <p>A requested instruction, in an action for breach of contract to purchase “current receipts eggs,” inaccurate in the statement that “current receipts eggs” meant “fresh eggs,” while the jury under the evidence could not find that fact, was properly refused on that ground.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dee. Dig. § 252.*]</p> <p>Gray, Circuit Judge, dissenting.</p>

<p>In Error to the District Court of the United States for the Middle District of Pennsylvania.</p> <p>Action by Joseph Kocsis against the American Car & Foundry Company. There was a judgment for plaintiff, and defendant brings error.</p>

<p>In Error to the Circuit Court of the United States for the District of Wyoming; John A. Riner, Judge.</p> <p>Action by M. B. Stoddard and another against the Royal Insurance Company of Liverpool, England. Judgment for plaintiffs, and defendant brings error.</p>

<p>Appeal from the District Court of the United States for the District of New Jersey; John Rellstab, Judge.</p> <p>In the matter of the Newfoundland Syndicate, bankrupt. From an order of the District Court, August Heckscher appeals.</p>

<p>Internal Revenue (§ 9*) — Corporation Tax — Life Insurance Companies —Premium Dividends.</p> <p>■ So-called “dividends” paid annually to policy holders by a mutual life insurance company doing business on the level premium plan, which arise from the excess of premiums collected during previous years over actual ascertained requirements, are not taxable as part of the company’s “net income * * * received by it * * * during such year,” under Act Aug. 5, 1909, c. 6, § 38, 36 Stat. 112 (U. S. Comp. St. Supp. 1911, p. 946), having been once taxed as a part of the income of the year when received.</p> <p>[Ed. Note. — For other cases, see Internal Revenue, Cent. Dig. §§ 13-28; Dec. Dig. § 9.*]</p>

Wright, Judge. Suit by the Louisville & Nashville Railroad Company against the Western Union Telegraph Company of Illinois. From a decree awarding a preliminary injunction restraining defendant from proceeding to condemn a right of way for a telegraph line along the right of way of the lines of complainant railroad company, defendant appeals.

<p>Appeal from the District Court of the United States for the District of New Jersey; John Rellstab, Judge.</p> <p>In the matter of the McCarthy Portable Elevator Company, bankrupt. From an order of the District Court, Fred. C. Keeney appeals.</p>

<p>Patents (§ 328*)- — Invention—Staple Puller.</p> <p>The Russell patent No. 545,537 for a staple puller held void for lack of invention, in view of prior art.</p>

<p>L Patents (§ 328*) — Validity and Infringement — Lamp Bracket,</p> <p>The Rosenbluth patent, No. 883,973, for a lamp bracket, designed for use on automobiles or other vehicles, comprising a base by which it may be attached to the vehicle and two arms, one of which carries a number plate or license panel and the other a lamp by which the plate may be illuminated, is as to claims 7, 8, and 10 void for lack of invention in view of the prior art; also held, not infringed, if conceded validity.</p> <p>2. Patents (§ 328*) — Validity and Invention — Lamp Bracket.</p> <p>The Hughes patent, No. 962,220, for a lamp bracket for vehicles, held as to claims 5 and 6 void for lack of invention, in view of the prior art.</p> <p>3. Patents (§ 28*) — Designs—Validity.</p> <p>It is essential to the validity of a design patent that it should disclose invention, and also, under Rev. St. § 4929 (U. S. Comp. St. 1901, p. 3398), as amended by Act May 9,1902, c. 783, 32 Stat. 193 (H. S. Comp. St. Supp. 1911, p. 1457), that the design be ornamental as well as new and original.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 33; Dec. Dig. S 28.*]</p> <p>4. Patents (§ 328*) — Validity—Designs tor Vehicle Number Plate Supports.</p> <p>The Kosenbluth design patents, No. 41,388 and No. 41,389, for designs for vehicle number plate supports, are void, for the reason that the articles shown are mechanical and functional, and not ornamental.</p>

<p>In Equity. Suit by the Rose Manufacturing Company against the Cox Brass Manufacturing Company. On final hearing.</p>

<p>At Law. Proceedirfg by the Western Union Telegraph Company against the Louisville & Nashville Railroad Company and others. On motion to remand to state court.</p>

<p>1. Injunction (§ 136*) — Proceedings for Determination of Compensation — Equitable Relief.</p> <p>Where a telegraph company installing and operating on a railroad company’s right of way a telegraph system, pursuant to a contract permitting such use of the right of way for a specified period, sought to condemn as authorized by state statute the right of way of the company in the state for the use of the system after the expiration of the period and the inability of the parties to agree on a future arrangement, the court pending determination of compensation would maintain the status quo by enjoining the railroad company from interfering with the system.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 305, 306; Dec. Dig. § 136.*]</p> <p>2. Courts (§ 266*) — Jurisdiction—Injunction—Property Outside of State.</p> <p>Where a foreign telegraph company installed and operated on a domestic railroad company’s right of way a telegraph system within and outside of the state as a single System, and it sought to condemn the property of the company in the state for use of the system in the state, the court pending determination of compensation would restrain the railroad company from interfering with the system outside of the state in view of the peculiar character of the property involved.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 806-808; Dec. Dig. § 266.*]</p> <p>On Motion to Dissolve Temporary Injunction.</p> <p>3. Eminent Domain (§ 47*) — Acquisition on Railroad Right of Way for Telegraph System — Federal Statutes.</p> <p>Rev. St. U. S. § 3964 (U. S. Comp. St. 1901, p. 2707), declaring that all railroads or parts thereof in operation are. post roads, does not interfere with the right of a state to authorize a telegraph company to condemn a right of way for a telegraph system installed and operated on a railroad right of way pursuant to a contract for such use for a specified time; the right of way sought to be taken by the telegraph company not preventing the railroad company from operating its railroad and carrying the mail.</p> <p>[Ed. Note. — For other cases, see Eminent Domain, Cent.' Dig. §§ 107-120; Dec. Dig. § 47.*]</p> <p>4. Injunction (§ 136*) — Proceedings for Determination of Compensation —Equitable Relief.</p> <p>Where a foreign telegraph company, installing and operating on a domestic railroad company’s right of way a telegraph system within and outside of the state as a single system, sought to condemn a right of way in the state for use of the system in the state, a temporary injunction restraining the railroad company from interfering with the system would not be dissolved, as applied to the system in other states, merely because of the situation there, as. to condemnation there, especially where a severance, pendente lite, of the unified system at any point would in- • jure the telegraph company’s property in the state.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 305, 306; Dee. Dig. § 136.*]</p> <p>5. Injunction (§ 175*) — Proceedings fob Determination of Compensation —Equitable Relief.</p> <p>The court, seeking.to maintain the status quo by injunction, pending proceedings by a telegraph company, installing and maintaining a telegraph system on a railroad company’s right of way, to condemn the railroad company’s right of way for the system, will enjoin the railroad company, in possession and alone operating the railroad lines as lessee, from interfering with the telegraph system.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. § 388; 'Dee. Dig. § 175.*]</p>

D. Frank Kline was convicted of mailing a letter giving information where and by whom an abortion would be performed and how and by what means it might be produced, in violation of Cr. Code, § 211.

<p>Towage (§ 11*) — Injury to Tow — Negligence or Tug.</p> <p>A tug held, on the evidence, not in fault for an injury to a barge laden with stone, which she towed near a temporary wharf and beached for unloading. and which was strained and injured because of a channel under her bottom.</p> <p>[Ed. Note. — Eor other cases, see Towage, Cent. Dig. §§ 11-23; Dee. Dig. § 11.*]</p>

<p>1. Bankruptcy (§ 163*) — 'Voidable Preference — Recordable Transfers.</p> <p>The only effect of the amendments of Bankr. Act July 1, 1898, c. 541, § 60a, 30 Stat. 562 (U. S. Comp. St. 1901, p. 3445), by Act Feb. 5, 1903, c. 487, § 13, 32 Stat. 799 (U. S. Comp. St. Supp. 1911, p. 1506), by the addition of the provision that, “where the preference consists in a transfer, such period of four months shall not expire until four months after the date of the recording or registering of the transfer, if by law such recording or registering is required,” was to carry forward the four months’ period within which a recordable transfer which was in fact preferential might be attacked as voidable under subdivision “b,” leaving the question whether or not the transfer constituted a voidable preference to be determined as of the date when it was actually made; and a transfer which was then made for a present consideration, and was not therefore preferential, does not become so because of delay in recording.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 247, 248; Dec. Dig. § 163.*]</p> <p>2. Bankruptcy (§ 163*) — Voidable Preference — Recordable Transfers.</p> <p>Nor did the amendment of Act July 1, 1898, c. 541, § 60b, 30 Stat. 562 CU. S. Comp. St. 1901, p. 3445), by Act June 25, 1910, c. 412, § 11, 36 Stat. 842 (U. S. Comp. St. Supp. 1911, p. 1506), change the effect of the act in that respect, it being essential to a preferential transfer, both before and after amendment, that it should have been to or for the benefit of a pre-existing creditor, who thereby gained an advantage over other creditors.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 247, 248; Dec. Dig. § 163.*]</p> <p>3. Mortgages (§ 175*)' — Effect of Delay in Recording — Kentucky Statute — “Creditors.”</p> <p>Ky. St. 1903, § 496, providing 'that “no * * * mortgage * * * shall be valid against a purchaser for a valuable consideration without notice thereof, or a'gainst creditors until * * * lodged for record,” in view of the construction placed thereon by th© Court of Appeals of the state, by the word “creditors” includes only subsequent creditors without notice, who by their own activity have acquired a hold or lien on the property covered by the mortgage before it is lodged for record.</p> <p>[Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 417, 418; Dec. Dig. § 175.*</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1713-1727; vol. 8, pp. 7622-7623.]</p> <p>4. Bankruptcy (§ 175*) — Mortgage—Sufficiency of Proof.</p> <p>Evidence considered, and held not to sustain the objections of a trustee to a mortgage executed by th© bankrupt to his mother on real estate for a portion of the purchase price thereof, on the ground that it was not executed at the time it bore date, and’that the mortgage and notes secured were for a larger amount than, was due claimant.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent Dig. §§ 247, 248; Dec. Dig. § 175.*]</p> <p>5. Bankruptcy (§ 184*) — Mortgage—Validity of Lien.</p> <p>The withholding from record of a mortgage given by a bankrupt to his mother for the purchase price of the mortgaged property, where it was not by agreement with or at the instance of the bankrupt, but on the advice of third persons to avoid what was deemed double taxation, held not to invalidate the mortgage as against the bankrupt’s trustee.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 275-277’; Dec. Dig. § 184.*]</p> <p>6. Mortgages (§ 175*) — Impeachment eor Fraud — Failure to Record.</p> <p>The mere withholding from record of a mortgage does not invalidate it for fraud, unless it was pursuant to a fraudulent purpose to give the mortgagor a fictitious credit.</p> <p>[Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 417, 418 ; Dec. Dig. § 175.*]</p>

In Bankruptcy. In the matter of bankruptcy proceedings of Michael C. Simon, individually and as surviving partner of the firm, of Ely Meyer & M. C. Simpn, bankrupts. On petition to review a referee’s finding overruling specifications of objection to the bankrupt’s discharge.

<p>In Equity.. .Suit by the Pacific Building & Loan Association against Millard T. Hartson.</p>

<p>X. Courts (§ 344*) — Federal Courts — Privilege from Service of Process.</p> <p>In the absence oí a state statute on the subject, the question oí privilege of suitors and witnesses from service of process must be determined by the United States court as a question of general jurisprudence, by the exercise of its independent judgment.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 917; Dec. Dig. § 344.*]</p> <p>2. Process (§ 118*) — Exemption from Service — Persons Exempted.</p> <p>The privilege of suitors and witnesses from service of process extends, not only to those who attend before the court on the trial, but also to those who attend as parties, or as witnesses, before masters in chancery, registers in bankruptcy, examiners, and commissioners to take depositions; and the mere fact that depositions are taken by agreement does not impair the privilege.</p> <p>[Ed. Note. — For other cases, see Process, Cent. Dig. § 146; Dec. Dig. § 118.*]</p> <p>3. Process (§ 118*) — Exemption from Service — Persons Exempted.</p> <p>The privilege of a suitor from service of process extends to his attendance before a notary public for the taking of his deposition, pursuant to agreement of the attorneys of the parties; for, though a notary taking deposition is not a tribunal having the powers of a master in chancery, a witness may, under Comp. St. Neb. 1911, c. 61, § 7, and Rev. St. § 863 (U. S. Comp. St. 1901, p. 661), be compelled by process to attend before a notary and to answer questions put to him.</p> <p>[Ed. Note. — For other cases, see Process, Cent. Dig. § 146; Dec. Dig. § 118.*]</p>

<p>Appeal from the District Court of the United States for the Northern Division of the Eastern District of Washington;</p>

<p>In Error to the District Court of the United States for the Western District of Texas; Thomas S. Maxey, Judge.</p>

<p>In Error to the District Court of the United States for the Eastern District of Texas; Gordon Russell, Judge.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Texas; Gordon Russell, Judge.</p>

<p>In Error to the Circuit Court of the United States for the Eastern District of Missouri.</p>

McPherson, Judge. Action by Dundas F. Pratt and others, as executors of the last will of Ferdinand J. Dreer, against William McCoach, Collector of Internal Revenue for the First Collection District of Pennsylvania. Judgment for plaintiffs, and defendant brings error.

<p>Appeal from the District Court of the United States for the Southern Division of the Western District of Washington; Cornelius H. Hanford, Judge.</p>

<p>Appeal from the District Court of the United States for the Southern Division of the Northern District of Alabama; Win. I. Grubb, Judge.</p>

<p>In Error to the District Court, of the United States for the Eastern District of Louisiana; Rufus E. Foster, Judge.</p>

<p>Appeal from the District Court of the United States for the Northern District of Alabama; Wm. I. Grubb, Judge.</p>

<p>In Error to the District Court of the United States for the Northern District of Texas; Edw. R. Meek, Judge.</p>

<p>Appeal and Cross-Appeal from the United States District Court for the Northern District of Georgia; Wm. T. Newman, Judge.</p>