Volume 261 — Federal Reporter

<p>In Error to the District Court of the United States for the Southern District of Georgia; Beverly D. Evans, Judge.</p> <p>Action by Edgar J. Oliver, administrator of Bud Hall, against the Seaboard Air Line Railway Company. There was a judgment for plaintiff (250 Fed. 652), and defendant brings error.</p>

<p>In Error to the District Court of the United States for the First Division of the Northern District of California; Maurice T. Dooling, (Judge.</p> <p>Emily Goublin was convicted of violation of Act May 18, 1917, c. 15, § 13, and she brings error.</p>

Bill by the Arctic Iron Company against the Cleveland-Cliffs Iron Company and another. From a decree for complainant, defendants appeal. Questions certified to the United States Supreme Court.

<p>Mines and Minerals <®^74 — Right to Rescind Contract for Fraud Waived by Modification of Contract.</p> <p>A purchaser of oil property held under lease, which took possession and after operating the wells thereon for seven months, being in default in payments, secured a modification of the contract, by which it obtained better terms, and under which it continued making payments for several months, held to have thereby ratified the original contract, and to have lost any right it may have had to rescission on the ground of misrepresentation of the property.</p> <p><g^x>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Evidence ©=>393(1) — Parol evidence inadmissible in absence or mistake or fraud.</p> <p>A written oil and gas lease cannot be varied by parol evidence, unless mutual mistake or fraud bo present.</p> <p>2. Mines and minerals <g=»78(2) — Right to forfeiture of oil and gas lease.</p> <p>Where the lessee under an oil and gas lease agreed to complete a well within one year, or pay at the rate of $40 for each additional three months completion should be delayed from the time fixed, the lease cannot be forfeited because the lessee made no effort to start drilling a well until the year had nearly expired.</p> <p>3. Mines and minerals <g=>79(3) — Forfeiture of oil and gas lease for nonpayment OF RENTALS.</p> <p>Where payment of first quarter’s rent due under oil and gas lease was tendered before it was due, and there was no requirement in the lease for payment in advance, the lease cannot be forfeited because tender for a subsequent quarter was not made until after the quarter began.</p> <p>4. Courts ©=>359 — Federal courts should follow local law as to validity of gas leases.</p> <p>The federal courts should follow the local law in determining the validity of oil and gas leases.</p> <p>5. Mines and minerals <©=>58 — Oil and gas lease non-unilateral.</p> <p>Provision in an oil and gas lease, allowing the lessee on payment of $1 to surrender the lease for cancellation, does not render the lease unilateral, so as to give the lessor a right of cancellation.</p> <p>6. Equity <©=>65(3)-~-Rigiits of lessee under oil and gas lease.</p> <p>Though oil and gas lease provided that the lessee should complete a well within one year or pay stipulated sum for each three months period completion was delayed, hold that, where the lessee knew a test well was being sunk in that field by another, and encouraged the work by assigning a nearby lease, tlie lessee’s delay in beginning drilling until the test well was completed did not deprive him of the right to proceed under (he lease and to have interference with drilling enjoined on the theory that he did not come into court; with clean hands.</p> <p>7. Specific performance <©=>51 — Injunction against interference with oil and gas lease.</p> <p>An oil and gas lease on a royalty basis held not so unfair as to deprive the lessee of the right to an injunction preventing the lessor from interfering with drilling, on the ground that the suit was in essence one for specific performance.</p> <p><gss>For other caaes see same topic & KDY-NtlMBKR in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the West-ern District of Oklahoma; John H. Cotteral, Judge.</p> <p>Suit by E. N. Gillespie against Frank Wright. Decree for complainant, and defendant appeals.</p>

<p>Appeal from the District Court of the United States for the Western District of Oklahoma; John H. Cotteral, Judge.</p> <p>Suit by E. N. Gillespie against R. F. Howe. From a decree for complainant, defendant appeals.</p>

<p>Appeal from the District Court of the United States for the Western District of Oklahoma; John H. Cotteral, Judge.</p> <p>Suit by E. N. Gillespie against Dennis O’Donnell. From a decree for complainant, defendant appeals.</p>

<p>Appeal from the District Court of the United States for the Western District of Oklahoma; John H. Cotteral, Judge.</p> <p>Suit between Z. W. Sutherland and E. N. Gillespie. From a decree for the latter, the former appeals.</p>

<p>Appeal from the District Court of the United States for the Western District of Oklahoma; John H. Cotteral, Judge.</p> <p>Suit between William A. Renfrow and E. N. Gillespie. From a decree for the latter, the former appeals.</p>

<p>1. Army and navy <§^»40 — Indictment and information <@=»110(3) — Espionage Act; indictment in language of statute.</p> <p>Where the charge is the willful and intentional doing of certain acts, by making certain statements with certain intentions, and such acts are made criminal by Espionage Aet, tit 1, § 3, as amended by Act May 16, 1018, § 1 (Comp. St. 1918, § 10212c), an indictment which follows the language of the statute, and gives a statement of facts and circumstances sufficient to identify the acts charged as an offense, is good.</p> <p>«g^cFor other cases see same topic & KEY-NUMBBR in all Key-Numbered Digests & Indexes</p> <p>2. Army and navy @=>40 — Espionase Act ; instruction as to character of I. W. W.</p> <p>Evidence, in a prosecution for violation of Espionage Act, tit. 1, § 3, as amended by Act May 16, 1918, § 1 (Comp. St. 1918, § 10212c), held not to justify the court in instructing as matter of law that the X. W. W. is a disloyal and unpatriotic organization, and that its adherents owe no allegiance to any organized government; the literature properly admitted in evidence, and which would warrant the instruction, not being conclusively shown to be an authorized statement of the attitude of the organization as a whole.</p> <p>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>^r»For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

S. Bean, Judge. Criminal prosecution by the United States against Marie Equi. Judgment of conviction, and defendant brings error. The indictment in this case charges a violation of section 3 of Espionage Act June 15, 1917, c. 30, tit. 1, 40 Slat. 219, as amended by Act May 16, 1918, c. 75, § 1, 40 Stilt. 553 (Comp. St. 1918, § 10212c).

<p>1. Shipping <3=39 — Charter party; construction of cesser clause.</p> <p>A charter party containing a cesser clause is to be so construed, If possible, as not to have the effect oí terminating the charterer’s liability to the shipowner lor breach of a provision which is not left or made enforceable against the cargo or a person or thing other than the charterer.</p> <p>■2. Shipping <§=>177 — Demurrage ; construction of cesser clause in charter party.</p> <p>Though the cesser clause of a charter party found in the printed provisions declared that on shipments of cargo and acceptance by the master, and on settlement of dead freight, if any, or any freight not represented by bills of lading, the charterer shall be deemed to have fulfilled the charter party, etc., held that, where Ihe charterer did not have the cargo discharged at destination within the period fixed by a written provision of the charier party, the written provision prevails over the cesser clause, under the rnie that, where there is a repugnancy between written and printed provisions of a contract, the writing will prevail; hence the charterer was liable for the delay.</p> <p>8. Shipping <§=177 — Demurrage ; delay in unloading.</p> <p>Where a charter party fixed a reasonable time for discharge of cargo, the charterer is liable for failure to discharge the cargo within that time, it having failed to provide a berth as required by the charter party, notwithstanding the charter party provided that the master of the vessel should pay üio stevedore selected by the charterer.</p> <p>4. Shipping <§=177 — Demurrage ; delay in unloading.</p> <p>Where a charterer failed to discharge cargo within the time fixed by the charter party, and the owner of the vessel thus lost profits, the charterer is liable in damages to the owner.</p> <p><§=>!’or other eases see saino topic & KBY-NUMBBR in all Key-Numbered Digests & Indexes</p>

Petition for Revision of Proceedings of the District Court of the United States for the District of Oregon; Robert S. Bean, Judge. In the matter of the Western Condensed Milk Company, bankrupt. On petition of James G. Wilson, trustee, to revise an order allowing claims of A. J. Benham and others as preferred debts.

<p>Monopolies <S=3l7(2) — Manufacturer's fixing of resale price.</p> <p>Manufacturer’s announcement in advance Unit customers wore expected to charge the price fixed by it, and that penalty for refusal to maintain price would be refusal to sell to the offending customer, observance of the request to maintain price by customers generally, and the actual enforcemént of the penalty by refusing to sell to a customer failing to maintain the price, does not constitute a violation of the statutes against monopolies.</p> <p><§=>For other eases see same topic & KEY-NUMBEK in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for'the Northern District of Texas; James C. Wilson, Judge.</p> <p>Lucian C. Laughter was convicted of violating the Reed Amendment, and he brings error.</p>

Evans, Judge. In the matter of R. K. White, bankrupt. Petition by J. Saxton Daniel, trustee in bankruptcy, on which Mrs. Theodosia E. White intervened, claiming the property claimed by the trustee. From a decree for the trustee, claimant appeals.

<p>Appeal from the District Court of the United States for the Southern District of Georgia; Emery Speer, Judge.</p> <p>Habeas corpus by Low Hong. From an order of discharge, the United States appeals.</p>

<p>In Error to the Circuit Court of the United States for the District of Maryland, at Baltimore.</p> <p>Action at law by the Granite Savings Bank & Trust Company against George F. Buchholz. Judgment for plaintiff, and defendant brings error.</p>

Rudkin, Judge. Suit by G. E. Witt & Co., Incorporated, against Harry Barley and Curt R. Reichel, copartners doing business under the firm name of Barley & Reichel. From an interlocutory decree for complainant, defendants appeal.

<p>Appeal from the District Court of the United States for the Northern Division of the Western District of Washington; Edward E. Cushman, Judge.</p> <p>Suit in equity by the Smith Cannery Machines Company against the Seattle-Astoria Iron Works, Thomas A. Heckman, and N. C. Nicholsen. Decree for defendants, and complainant appeals.</p>

<p>Patents <S=>328 — Invention and iní'bingeiiicm.</p> <p>The Chute patent, No. 821,908, for an improvement in the process of making wood alcohol, claims 1, 5, 6, and 10, held valid, not anticipated, and infringed.</p> <p>to^u>For oilier eases see same topic; & KKY-N UMBER in all '¿Cc$*.Numbered Digests & Indexes</p>

<p>1. Bankruptcy <@=>224 — Objections to jurisdiction not waived.</p> <p>Where a corporate trustee in bankruptcy petitioned to extend the trusteeship to an allied corporation,' and such corporation, after objecting to the referee’s jurisdiction, answered to the merits, held, in proceedings to review order of referee granting petition, which was the first order made, that the objection to jurisdiction was not waived.</p> <p>2. Bankruptcy <@=>224, 288(1) — Jurisdiction of referee jn proceedings by TRUSTEE.</p> <p>Where a trustee in bankruptcy applies for an order requiring third persons to turn over property in their possession, and bases bis application upon the ground that the property in question belongs to bankrupt and is held without color ot' right, the referee is bound to take jurisdiction of the matter, and under that power to summarily determine the question, for the bankruptcy court is clothed with power to cause estate of bankrupt to be collected and determine controversies in relation thereto, and, unless the claim of the trustee seems of doubtful validity, plenary suit will not be required.</p> <p>8. Bankruptcy <@=224 — Sufficiency of petition of trustee to compel delivery of property.</p> <p>The petit ion of a trustee in bankruptcy of a corporation to extend the trusteeship to another corporation and to compel the delivery of property as property of the bankrupt held to require the referee to entertain the summary proceeding.</p> <p>4. Bankruptcy <@=140(%)~Jurisdiction over corporations, part of one BUSINESS.</p> <p>Where an individual engaged in manufacturing piano cases organized two corporations, transferring to one the business and to the other the real property and managed the two corporations, not as distinct and separate entities, but as a part of the manufacturing business, held that, on bankruptcy of the manufacturing corporation, the trustee in bankruptcy is entitled to a summary order extending the trusteeship to the assets of the other corporation.</p> <p><§xx>Eor oilier casos see same topic & KEY-NUMB SR in all Key-Numbered Digests & Indexes</p>

<p>1. bitas and notes ©=>379 — -Accommodation indorsement; defense against BONA FIDE PURCHASER.</p> <p>One who allows the uso of his name as payee of a note and becomes an indorser of the same is liable to subsequent bona fide holder for value, even though he was not the real payee.</p> <p>2. Bills and notes ©=>306, 371 — Accommodation note ; liability to subsequent INDORSER WITHOUT NOTICE.</p> <p>One who signed a note as only an accommodation maker is liable to a payee who indorsed the note without knowledge that the maker was only an accommodation party, and such payee and indorser, having paid the note or discharged judgment thereon, may recover the amount, from the accommodation maker or have the judgment assigned to a third person and enforce it by way of exoneration.</p> <p>3. Set-off and counterclaim <@=>60 — Failure to urge; effect.</p> <p>Although a defendant may in an action against him set up a counterclaim, his failure to do so does not prevent Mm from resorting to a separate action.</p> <p>4. Subrogation ©=>7(7) — Right of surety; payment of judgment.</p> <p>Though the payee and indorser of a note, who was sued with the maker, did not allege, in accordance with Revisal N. C. 1905, § 2840 et scq., that he was surety, so that the jury might distinguish between the principal and surety, and judgment might be satisfied out of the property of the principal, the payee is still entitled to subrogation, and if he satisfies the judgment may have it assigned to a third party, to be enforced against the property of the principal.</p> <p>©=>For other eases see same topic & KBY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>5. Subrogation @=>31(2) — Parties to note ; bights of indorser.</p> <p>Where an indorser of a note, who was sued with the maker, satisfied the judgment, he is entitled to demand as against the maker, who is the principal debtor, an assignment of the judgment for his benefit.</p> <p>6. Bills and notes @=>306 — Indorsers; rights to possession on payment.</p> <p>An Endorser on a note may pay it and demand its delivery to him, so that he can' enforce it against the maker for his own benefit.</p> <p>7. Subrogation @=>41(4) — Creditors of subrogee ; enforcement of right.</p> <p>Where an indorser of a note, who was sued with the maker, did not set up the fact that he was only a surety, in accordance with Kevisal N. C. 1905, § 2840 et seq., held, where judgment was recovered against both the indorser and the maker, creditors of the indorser may urge his right to subrogation, so that the judgment will he first enforced out of the property of the maker, or they may pay the judgment and take an assignment, for otherwise the rights of indorser’s creditors might be lost.</p> <p>tgx^For other cases see same topic & KEY-NUMBER, in all Key-Numbered Digests & Indexes</p>

<p>Criminal law <®=>37 — Entrapment as defense ; sale of liquor to Indians.</p> <p>A conviction for selling liquor to Indians held not invalidated because a government agent, having reports of illegal sales by defendant, employed and sent two full-blood Indian men to defendant’s saloon, where on merely asking for whisky they were sold several drinks.</p> <p>^soFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Bankruptcy <g=>154 — Set-off against trustee.</p> <p>Claimants, who delivered parcels ior bankrupt’s store, for some of which they collected the price, which they customarily paid over every few days, rendering bills for their services once or twice each month, held entitled to apply the proceeds of such collections in their hands at the time of bankruptcy on the amount due them for services.</p> <p>2. Trusts <3=»30%(1) — Kelatjon of parties; collection of money for another.</p> <p>The fact that one person has collected money for another and has it in his possession does not, without more, establish a trust relation between them.</p> <p>or other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In Bankruptcy. In the matter of Harry E. Seal, bankrupt. On application for order, vacating order of adjudication, and for a stay of proceedings.

<p>Appeal from the District Court of the United States for the Northern District of Alabama; William I. Grubb, judge.</p> <p>Bill by Albert F. Houghton raid others against Eugene F. Enslcu and others. From a decree dismissing the bill, complainants appeal.</p>

Petition to Revise an Order of the District Court of the United States for the Southern Division of the Eastern District of Tennessee. In the matter of the Hitt Lumber & Box Company, bankrupt. On petition of the Chattanooga Savings Bank to revise an order of District Court.

<p>1. Contracts @=155 — Construction against party using words.</p> <p>A provision inserted in a contract with a view to protect one of the parties thereto is to be construed against him, if ambiguous.</p> <p>2. Sales @=>81*(6) — Amount of monthly deliveries under contraod to deliver coal.</p> <p>A provision of a contract by a mining company to deliver 15,000 tons of coal within one year as ordered, that the company should use diligence to fill orders, but should “not be obligated to ship during any month in excess of 2,500 tons,” and that the contract should terminate whenever 15,000 tons had been furnished, held to entitle the purchaser to demand delivery of 2,500 tons a month until the contract was filled.</p> <p>3. Sales @=>176(1) — Delay in delivery not waived by permission to catch UP BACK SHIPMENTS.</p> <p>Under a contract to deliver 15,000 tons of coal at the rate of at least 2,500 a month, where seller had failed to so deliver during certain months, a,letter of the buyer giving seller permission to “catch up” all back shipments by shipping mine run coal was not a waiver of damages theretofore sustained from seller’s failure to deliver coal on time; the permission to “catch up” merely extending a privilege without consideration, and revocable at the buyer’s pleasure.</p> <p>4. Trial @=>260(9) — Instructions ; refusal of requests covered.</p> <p>In an action for breach by a mining company of a contract to deliver coal, refusal of instructions requested by defendant held not error, in view of the instructions given.</p> <p>@=>For other cases see same topic & KEY-NUMBER in ail Key-Numbered Digests & Indexes</p>

Foster, Judge. Action by the State of Louisiana, by the School Board of the Parish of Tangipahoa, against the William T. Joyce Company and others. Judgment for defendants, and plaintiff brings error.

<p>1. Corporations <§=>116 — Consideration for same of stock.</p> <p>A contract by which a minority stockholder sold stock having a par value of $497,000 for $250 cash and $121,500.15 to be paid from dividends upon stock, in hope that buyer could induce his brother who was majority stockholder, to declaro larger dividends, etc., held valid, unless effected by fraud.</p> <p>2. Corporations <§=>116 — Sale of stock — 1<’rattd.</p> <p>Contract for sale of stock to majority stockholder’s brother was not void for fraud, because corporation declared large dividends soon after payment was completed, where such dividends were earned subsequent to contract’s execution, nor because of alleged wrongful handling of certain assets by majority stockholder, where there was no evidence that buyer knew of such acts.</p> <p><§=>Eor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>3. COBPORATIONS @=3116 — SALE OF STOCK-Fraud — DUTY TO INVESTIGATE.</p> <p>A sale of corporate stock cannot be set aside because of fraudulent misrepresentations regarding corporation’s business, where seller’s experiences should have put him upon inquiry as to true state of corporation’s affairs, and he was in a position to have ascertained true facts.</p> <p>@=»For other oases see same topic & KEY-NUMBER in ail Key-Numbered Digests & Indexes</p>

<p>1. Army and navy @¡=>40 — Espionage Act; forcible interference with draft.</p> <p>Forcible interference with the operation of the draft under the Selective Service Act constitutes the offense of “willfully obstructing the recruiting or enlistment service,” within Espionage Act, tit. 1, § 3 (Comp. St. 1918, § 10212c).</p> <p>2. Conspiracy @=>27 — Overt act ; forcible interference with draft.</p> <p>Espionage Act, tit. 1, § 4 (Comp. St. 1918, § 102120), prescribing punishment for conspiracy to violate section 2 or 3 (Comp. St. 1918, § 10212b, 10212c) of the act, where an overt act is committed, supersedes Criminal Code, § 37 (Conn). Rt. § 10201), as to such offenses, but does not supersede Criminal Code, § 6 (Comp. St. § 10170), máking it an offense to conspire to oppose the authority of the United States by force, and a conspiracy to oppose enforcement of the Draft Act by force may be prosecuted thereunder, although no overt act is charged.</p> <p>3. Criminal law @=>338(4, 5) — Evidence of conspiracy to oppose draft.</p> <p>On trial of defendant Cor conspiracy to oppose enforcement of the draft by force, admission of evidence of a highly seditions and disloyal speech by a third person, wilh whom defendant was not. shown to have any connection, hold reversible error.</p> <p>tgsalfor other cases see same topic & KEY-NUMBER m all Key-Numbered. Digests & Indexes</p>

<p>Indians <§=>13 — Effect of error in enrollment.</p> <p>That the Dawes Commission, in listing as a Creek citizen a woman whose name appeared on the Creek rolls of 1895, confused her with another and erroneously gave her the name of her supposed husband, m which name her allotments were made, held, not to invalidate the patents therefor.</p> <p>^=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Western District of Oklahoma; John H. Cotteral, Judge.</p> <p>Ered Blackstock was convicted of violation of the Mann Act, and brings error.</p>

<p>In the matter of the petition of the clerk of the Circuit Court of Appeals, Seventh Circuit, for instructions respecting custody of his paid and canceled bank checks.</p>

<p>In Error to the District Court of the United States for the Middle District of Alabama; Henry D. Clayton, Judge.</p> <p>Action by T. B. Mullin against the Louisville & Nashville Railroad Company. Judgment for defendant, and plaintiff brings error.</p>

<p>Criminal law 1172(1) — Instructions on trial for violation of White Slave Traffic Act.</p> <p>Giving an instruction in a prosecution for violation of White Slave Traffic Act, § 2 (Comp. St. § 8813), which permitted conviction if the jury found that the girl named was transported for “some immoral purpose,” held not reversible error, in view of the evidence, which clearly showed an offense within the purview of the statute.</p> <p><@^s>For other cases see same topic & KEY-NUMBER in all Key-Numborod Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Northern District of 'Iowa; Henry T. Reed, Judge.</p> <p>Bernard Stenzel was convicted of violating the Espionage Act of June 15, 1917, and he brings error.</p>

<p>Appeal from the District Court of the United States for the Northern District of Texas; Edward R. Meek, Judge.</p> <p>Suit by T. M. Kell against S. A. Castlebury. From a decree for defendant, complainant appeals.</p>

Appeals from the District Court of the United States for the Northern District of Texas; Robert T. Ervin and Du Val West, Judges. Bill by the Farmers’ State Bank of Texahoma against Mrs. R. S. Thompson, in which C. C. Patten moved to intervene. From a decree dismissing the bill and -intervention, complainant and intervener appeal, while defendant appeals from an order appointing a receiver.

<p>Army and navy <@=^20 — Criminal false statement within Selective Service Act.</p> <p>An indictment charging that defendant, being of draft age, “for the purpose of obtaining a more deferred classification,” when before the local board, willfully, feloniously, and corruptly made certain false statements, to the effect that his father was dependent on him for support, Held to charge an offense under Selective Draft Act, § 6 (Comp. St. 1918, § 2044Í), making guilty of a misdemeanor “any person who shall make * * * any false statement * * * as to the fitness or liability of himself * * * for service. * * * ”</p> <p><§s^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Petition to review order of Federal Trade Commission. Petition by the National Harness Manufacturers Association to review an order of the Federal Trade Commission of the United States and others. In the matter of the printing of the record of the commission.

<p>1. War <$=>4 — Espionage Act; impeachment op administration op Red Cross.</p> <p>As the Red Cross, though not a part of the military and naval forces, worked during the World War as an auxiliary to such forces, an interference with the Red Cross by the utterance of remarks which would shake public confidence in its administration, and thus reduce contributions, is a violation of Espionage Act June 15, 19.17, where the remarks were made with such intent.</p> <p>2. Criminal Law ®=»400(6), 419, 420(12) — Admission op financial statement op Red Cross in prosecution for violating Espionage Act by attacking THAT SOCIETY.</p> <p>As the Red Cross is a national corporation, required by Act Jan. 5, 1905, c. 23, § 6 (Comp. St. § 7702), to file annual reports with the Secretary of War, a financial statement sent to a county chairman of the Red Cross committee from the general office of the society is not admissible in a prosecution for violating the Espionage Act, by attacking the Red Cross, the identifying witness having no knowledge of truth of report, it being simple for the prosecution to obtain a copy of the official report, and the hearsay rule will not be relaxed in such a ease.</p> <p>.jg^Fot other cases see same topic & KEY-NUMB 1ÜR in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the District of New Mexico; Colin Neblett, Judge.</p> <p>Jose Chavez and others were convicted of violating Criminal Code, § 19, and they bring error.</p>

<p>In Error to the District Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>Criminal prosecution by the United States against Michael Morris. Judgment of conviction, and defendant brings error.</p>

<p>Appeal from the District Court of the United States for the Western District of Texas; William R. Smith, Judge.</p> <p>In the matter of George F. Gocrner, bankrupt. The bankrupt appeals from an order refusing discharge on objections of Herbert C. Eastman, a creditor.</p>

<p>1. Patents <©=>328 — Fob music sheet guide valid and infringed.</p> <p>The Thomson patent, No. 841,356, for a music sheet guiding device for mechanical piano and organ players, held to cover a patentable improvement on prior devices, and entitled to a fair construction and a reasonable range of equivalents; also held infringed.</p> <p>2. Patents <©=>289 — Suit for infringement not barred by laches.</p> <p>A delay of four or five years after defendant’s device was placed on the market held not such laches as barred a suit for infringement.</p> <p>Ward, Circuit Judge, dissenting.</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Suit in equity by the Schubert Piano Company against the JEolian Company. Decree for defendant, and complainant appeals.</p>

<p>1. Patents <©=>328 — I’iitok use.</p> <p>Rodman patent, No. 1,076,453, for a method for making case-hardening material, held not invalid on the ground of prior use.</p> <p>2. Patents <©=>328 — Infringement; case-hardening material.</p> <p>The Rodman patent, No. 1,076,453, for a case-hardening material, which material was composed of carbonaceous pellets, held infringed.</p> <p>3. Patents <©=>328— Anticipation.</p> <p>The Rodman patent, No. 1,076.453, for a case-hardening material, claims 1, 7, 37, 22, and 25, consisting of pellets of carbon, etc., held not anticipated, and to show invention.</p> <p>4. Patents <§=>118 — Vague and incomplete claim invalid.</p> <p>The claim of a patent, which is incomplete and vague, because omitting an essential element, is invalid.</p> <p>other cases see samo topic & KBY-NUMB13R, in all Key-Numbered Digests & Indexes</p>

<p>1. Patents <@=>328 — Patent for well drills valid and infrinsed.</p> <p>The Griffin patent, No. 1,195,209, and the Hughes patent, No. 1,124,241, each for a rotary well-boring drill, held not anticipated, valid, and infringed.</p> <p>2. Patents <@=>82 — Validity of patent not affected by nonuser.</p> <p>_ The validity of a patent is not affected by nonuser of the patented device, if it has utility, in the sense of being capable of successful mechanical operation.</p> <p>3. Patents <@=>240 — Improver cannot appropriate .invention of predecessor.</p> <p>An improver cannot appropriate the invention of his predecessor, who has obtained a patent, as a base for his improvement without infringement, even though the improvement has been patented.</p> <p>igzsaFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>Bill by the United States Slicing Machine Company against Wolf, Sayer & Heller, Incorporated. From a decree for complainant (249 Fed. 245), defendant appeals.</p>

Suit by Marion P. Mann, executrix, against the Moir Hotel Company. Decree for defendant, and complainant appeals. This appeal is from a decree dismissing appellant’s bill which charged infringement of United States patent to Mann, No. 1,128,799, February 16, 1915, for improvement in water-closets.

<p>Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>Suit in equity by the Carr School of Preventive Dentistry and Medicine against Austin F. James. Decree for defendant, and complainant appeals.</p> <p>Appeal from the decree dismissing a petition charging appellee with infringing patent No. 1,138,355, relating to dentists’ tools.</p>

-Appeals from the District Court of the United States for the East-, ern Division of the Northern District of Illinois. Suit by the Martin Gauge Company against Albert E. Pollock and others. From the decree (251 Fed. 295), which granted part only of the relief sought, defendant appeals, and complainant also appeals.

<p>1. Patents <§s=>327 — Infringement suit; persons concluded by decree.</p> <p>Defendants in an infringement suit held not estopped, by a docreo In a prior suit to which they were not parties oil record, and where, pending such suit, it was stipulated by the parties in the present suit that the evidence there taken might be used in their suit by either party.</p> <p>2. Patents <§^=>328 — Validity and infringement; bruit-peeling machine.</p> <p>The Dunkley patent, No. 1,10-1,170, for a fruit-peeling machine, held void for anticipation; also not infringed.</p> <p>3. Patents <S=»328 — Validity; process ob peeling bruit.</p> <p>The Dunkley patent, No. 1,237,623, for process of peeling fruit or vegetables, held void for lack of invention, in view of the prior art.</p> <p><gzs>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Statutes <@=> 181(2) — Construction; unjust consequence.</p> <p>A construction placed on a statute should avoid an awkard and unjust consequence, unless the language compels such a result.</p> <p>2. Statutes <©=>217, 221 — Construction; history of legislation and other SECTIONS OF LAW.</p> <p>The construction of a statute should be with reference both to the history of the legislation and to other sections of the law with which it is in pari materia.</p> <p>3. Statutes <@=>206 — Construction; punctuation and choice of language.</p> <p>It is a fundamental and general canon of construction of a statute that attention m!ust be given to all parts of the particular piece of legislation, with some consideration both for punctuation and choice of language.</p> <p>4. Courts <@=>270 — Jurisdiction of federal courts; district of suit.</p> <p>Judicial Code, § 51 (Comp. St. 1033), authorizes a civil suit to be brought in a federal court in the district of plaintiff’s residence, where jurisdiction depends alone on diversity of citizenship, only when defendant may be found and served in such district.</p> <p><@=For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Railroads <s=>81 — Dease of eight of way; bight of warehouseman to SUB foe cancellation.</p> <p>A Washington corporation, which maintained a warehouse in the city of Seattle, cannot maintain a suit against an interstate carrier and those engaged in interstate commerce allowed by the carrier to erect warehouses on portions of its right of way, to cancel such leases or privileges, on the ground that they were granted in violation of the Interstate Commerce Act; the damage being too remote for legal redress.</p> <p>otlier cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

At Law. Action by Jessie Loughnan, administratrix of the estate of Hulton Loughnan, against Walker D. Hines, Director General of Railroads, and John Doe Truesdale, whose true Christian name is unknown. On motion to remand to state court.

<p>In Bankruptcy. In the matter of Ethel Luber and Isaac Kruger, individually and trading as the Diamond Skirt Company, bankrupts. On certificate for review of an order denying priority to the claim of an attorney for the bankrupts.</p>

<p>Criminal prosecution by the United States against Dr. W. B. Parsons. On demurrer to indictment.</p>

<p>Louis Christopherson and Charles J. Bauer were indicted for violations of Penal Code, §§ 35, 37. On demurrer to indictment.</p>

<p>3. Action <5==>6 — Grounds fob dismissal; “moot case.”</p> <p>That equity case is “moot” in which no decree consistent with both pleadings and existing facts will benefit any party as against the other parties to the litigation.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Moot Case.)</p> <p>2. Equity o=»:188 — Motion to dismiss; presumption of truth of allegations OF BILL.</p> <p>Where, prior to hearing of a motion to dismiss, complainant has put in all its evidence taken for final hearing and rested, allegations of the bill are to he taken as true on the motion only so far as sustained by complainant’s evidence.</p> <p>S. Equity 88 — Grounds for dismissal; moot case.</p> <p>Where, prior to suit by the government to dissolve an alleged illegal combination in restraint of trade, the parties had become hostile toward each other, one party had repudiated the agreement, which had never been carried into effect for any illegal purpose, and it was afterward abrogated by mutual consent, the case helé moot and dismissed.</p> <p>oilier ease,. see same topic & KKY-NUMBiilt in all Key-Numbered Digests & Indexes</p>

<p>At Law. Action by the Rockhill Iron & Coal Company against the City of Taunton. Trial to court. Judgment for defendant.</p>

<p>At Raw. Action by George H. Seavcr against W. D. Hines, Director General of Railroads. On motion to dismiss.</p>

<p>1. Removal oe causes <@=79(11) — Time for application; actions against United States oeeiceks.</p> <p>Under Judicial Code, § 33, as amended by Act Aug. 23, 1916 (Comp. St. § 1015), providing for removal into a federal court by certiorari, “at any time before trial or final hearing thereof,” of a prosecution in a state court against any officer of a court of the United States for or on account of any act done under the color of his office, a petition for such removal is seasonable, although filed after judgment in the state court, where an appeal has been taken, which under the state law vacates such judgment and removes the case into the appellate court for a retrial.</p> <p>2. Removal oe causes. <@=85%, New, vol. 9A Key-No. Series — Actions against United States officers; procedure.</p> <p>On petition of a federal officer for a writ of certiorari, under Judicial Code, § 33, as amended by Act Aug. 23, 1916 (Comp. St. § 1015), to remove a criminal prosecution against him from a state court, where the allegations of the petition are denied by the state authorities, the better practice is to hear and determine the jurisdictional question in a preliminary way before granting the writ, unless it appears to the court that an emergency exists requiring its immediate issuance.</p>

<p>1. Mortgages <©=>345 — Sale under power; limitations.</p> <p>Code of Law, § 1265, providing that no action shall be brought for recovery of lands after 15 years from accrual of right to maintain it, does not apply to exercise of power of sale conferred on trustee by deed of trust.</p> <p>2. Limitation op actions <@=>165 — Statute bars remedy, but not debt.</p> <p>A statute of limitations is a bar to the remedy, and does not extinguish or impair the obligation of the debtor.</p> <p>3. Equity <@=>66 — Seeking equity without doing equity.</p> <p>Even if the statute of limitations applied to and barred exercise of power of sale .under deed of trust, yet, the debt not being extinguished by the statute, the landowner’s suit to have the land freed from the Hen, without paying or offering to pay the debt, would be open to the objection that he who seeks equity must do equity.</p> <p>•4. Limitation oe actions <@=165 — Bar not available as cause op action.</p> <p>The statute of limitations is available only as a defense, and never as a cause of action; and so a suit to cancel lien of deed of trust cannot be based on the ground that exercise of the power of sale under the trust deed was barred by statute.</p> <p>■<@=s>For other oases see same topic & KEY-NUMBER in ail Key-Numbered Digests & Indexes</p>

<p>Appeal from the Supreme Court of the District of Columbia.</p> <p>Habeas corpus proceedings by Edward Ellison against Maurice Splain, United States Marshal in and for the District of Columbia. Application denied, and petitioner appeals.</p>

<p>1. Specific performance @=>10(1) — Enforcing part of contract.</p> <p>If an essential part of a contract cannot be specifically enforced, specific performance will not be granted of the remainder.</p> <p>2. Specific performance @=>10(1) — Enforcing part of contract; essential part.</p> <p>Relative to whether there can be specific performance of the part of a contract that defendant should transfer to plaintiff part of the stock of a corporation, all of which was to be bought bj> defendant, the provision requiring the personal services of plaintiff, the only one with practical experience in the business, as managing director and secretary-treasurer, is an essential part of the contract.</p> <p>3. Specific performance @=>73 — Contract for personal services.</p> <p>The provision of a contract requiring personal services by one of the parties cannot be specifically enforced.</p> <p>4. Specific performance @=>6 — Mutuality of remedy.</p> <p>Specific performance will not be decreed, where the remedy is not mutual; that is, where defendant could not have enforced the part of contract for personal services by plaintiff, because of its nature, plaintiff cannot have enforced the part for transfer of stock, unless bo has performed the services; it not being enough that he alleges that be has always been ready and now tenders performance.</p> <p>5. Account @=^12 — Equity jurisdiction; remedy at law.</p> <p>The prayer, in suit for specific performance, for accounting, because of plaintiff being deprived of bis salary under the contract, will not be granted; an action at law for damages furnishing ample remedy, and the prayer erroneously presupposing the contract could be specifically enforced.</p> <p>@=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Action by Harlan W. Hagan and another against Charles F. Boss, Sr. From a judgment for plaintiffs on appeal from the municipal court, defendant appeals.

<p>In Error to the District Court of the United States for the Eastern District of Texas ; Duval West, Judge.</p> <p>Criminal prosecution by the United States against Will Orear and others. Judgment of conviction, and defendants bring error.</p>

Suit by the Alva Steamship Company and the Bartlett-Frazier Company against the Great Lakes Dredge & Dock Company, in personam, and in rem against the tugs W. A. Field and North Harbor; the Great Lakes Towing Company, claimant. Decree for libelants against both respondents, and they separately appeal.

Suit in equity by the United States, for the use of the Erank Adams Electric Company and others, against the Chicago Bonding & Surety Company. Decree for complainant, and defendant appéals.

<p>1. Admiralty <§=>117 — De novo hearing on appeal.</p> <p>An admiralty case is heard do novo on appeál.</p> <p>2. Admiralty <§=>119 — Effect of determination on appeal.</p> <p>Where, on appeal from a decree on a libel filed by shipowners against an elevator company, whose elevator exploded, and a railroad company, a decree in favor of the railroad company was reversed on the ground that the elevator company was a mere Instrumentality of the railroad company, held that, despite reversal, the decree was not an adjudication that the railroad company was liable for the amount of damages fixed by stipulation between the libelants and the elevator company; the two corporations being-separate parties.</p> <p>otter cases see same topic & KEY-NUMBEIt in all Key-Numbered Digests & Indexes</p> <p>S. Admiralty <@=>88 — Moiety rule.</p> <p>Where an elevator exploded and injured vessels, and the elevator company was found liable, as was a railroad company which owned the elevator, etc., held, that the moiety rule applicable in tort cases in admiralty should not be applied; the railroad company being primarily liable, because a principal.</p> <p>4. Admiralty <@=>118 — Allowance of interest discretionary.</p> <p>Allowance of interest in damages- for torts in admiralty is within the discretion of the trial court, and usually that discretion will not be disturbed on appeal.</p> <p>5. Admiralty <@=>41, 88 — Form of decree in suit by owner, -for benefit of insurer.</p> <p>The owner of a vessel may sue and recover in his own name for the benefit of the insurer, and hence, as the insurers have nothing more than an equity of subrogation, and a recovery by the owner would preclude recovery by them, defendants cannot defeat recovery by the owner on the ground that the decree did not apportion the recovery between the owner and the insurers, etc., on whose behalf the libel was filed.</p> <p><gs»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Libel by Edwin Dyason, master of the steamship Welbeck Hall and bailee of her cargo, against the Pennsylvania Railroad Company, a corporation, and the Central Elevator Company of Baltimore City, a corporation. From a decree for libelant, defendants appeal.</p>

<p>Appeal from the District Court of the United States for the Northern District of Ohio: D. C. Westenhaver, Judge.</p> <p>Suit in admiralty by Charles E Geiger against the Great Lakes Steamship Company. Decree for libelant, and respondent appeals.</p>

<p>1. Appeal and error <@=>927(7)---Presumption as to truth of evidence.</p> <p>Assumption of the truth of plaintiff’s evidence is justified, on review of refusal to direct verdict for defendant.</p> <p>2. Master and servant <@=>321 — Owner’s duty to employe of independent contractos.</p> <p>The owner of property on which an independent contractor was to do work, under contract requiring the contractor to furnish his own appliances, owed no duty to the contractor’s employés in gratuitously furnishing an appliance to the contractor, except not to knowingly furnish an improper or defective appliance.</p> <p>3. Master and servant <©=>382(3) — Injury to employe of independent contractor; EVIDENCE OF OWNER’S KNOWLEDGE OF DEFECT.</p> <p>Relative to liability for the killing of employe of independent contractor for painting building, by breaking of rope for suspending the scaffold gratuitously furnished by owner’s superintendent, who knew the weakening effect on such rope of the acid in the building, held, the evidence made his knowledge of it being an improper rope for such use one for the jury; the fact of it being taken from a pile of ropes stored in the corner authorizing inference that it had been there an appreciable time, and a showing of knowledge of exact percentage of impairment not being necessary.</p> <p>4. Master and servant <©=>302(2) — Injury to ehployé of independent contractor ; IMPLIED AUTHORITY OF OWNER’S LOCAL SUPERINTENDENT.</p> <p>From the fact that a building of defendant corporation was being painted under a contract signed by its local superintendent, and that he had no local superior, it can be found that he was acting within his implied authority, when objecting to the method o'f swinging the scaffold, as injurious.to the building, and suggesting another method, he gratuitously furnished to the independent contractor a rope therefor, which by reason of defect therein broke, killing contractor’s employé.</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>5. Master and servant @=318(1) — Interference bz owner with independent CONTRACTOR.</p> <p>Under Oiv. Code Ga. 1910, § 4415, subsec. 5, an independent contractor and his employés become employes of the owner by interference of the owner with the method or means of doing the work, resulting in injury to.,an employé of the contractor.</p> <p>6. Master and servant @=189(2) — Vice principal and not fellow servant.</p> <p>A corporation’s local superintendent of its plant, with no local superior, is not a fellow servant of an employé painting the building, but a vice principal, for whose fault, resulting in injury to the employé, the employer is liable.</p> <p><§s»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

McCall, Judge. Suit by the Knoxville Gas Company against the City of Knoxville- and others. Erom a decree denying it an injunction, or other relief (253 Fed. 217), complainant appeals. The Knoxville Gas Company appeals from a final decree denying it an injunction or other relief to prevent the city of Knoxville from interfering with the company’s exaction of an increase in price of gas.

Sanford, Judge. Action by J. C. Boy, administrator of Cureton Boy, deceased, against the Bristol Gas & Electric Company. There was a judgment for plaintiff, defendant’s motion for new trial being denied, on condition that plaintiff enter a remittitur, and both plaintiff and defendant bring error.

<p>In Error to the District Court of the United States for the Eastern Division of the Northern 'District of Ohio; D. C. Westenhaver, Judge.</p> <p>Action at law by James B. Connors against the Erie Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Statutes <@=>219 — Construction of statute by executive department OF GREAT WEIGHT.</p> <p>"Whore the meaning of a statute is doubtful, great weight is given to the construction placed upon it by the department charged with its execution.</p> <p>2. Indians <3=>15(1) — Administrative regulations have effect of law.</p> <p>Regulations of the Department of the Interior for the protection oí Indians and their property, authorized by Congress and not inconsistent with 1.1 w, have the force of law.</p> <p>3. Wills <3=> ll, 25 — Right to make will disposing of property in derogation of state law.</p> <p>Under Act Cong. Feb. 14, 1913, amending Act. June 25, 1910, § 2 (Comp.' St. § 422S), allowing persons interested in allotments, held under trust or patent containing restrictions on alienation, to dispose of such property b.v will, and the regulations thereunder, a will by an Indian married woman, approved by the Secretary of the Interior disposing of all of her allotted lands, is valid, notwithstanding Rev. Daws Okl. 1910, § 83-11, providing that no married woman shall bequeath moie than two-thirds or her properly away from her husband, and that no person prevented by law from aliena ling real property shall be allowed to dispose of the same by will.</p> <p>4. Indians <@=>15(1) — Congressional power to control disposition of allotments.</p> <p>Congress has the right to pass legislation in the interest of Indians as a dependent people, and may control the disposition of allotments during the periods of restriction on alienation.</p> <p>•<§3»For other caaes see same topic & KEY-NUMBER in all Key-Numbered Digests & indexes</p>

<p>1. Railroads <3=»320 — Duty of care to prevent injury to person on crossing.</p> <p>Trainmen who know, or in the exercise of ordinary care ought to know, that a person on a crossing, apparently will not get out of danger, must use all reasonable oftoris to slacken speed, or, if possible, to stop, in order to avert an accident.</p> <p>2. Railroads <§=a350(12) — Negligence of operatives of train QUEsrroN for jury. .</p> <p>In an action by one injured when a train struck his wagon, his team having run away and balked on the track, which was straight, so that one on ihe crossing could be seen for a half mile, the question whether trainmen were guilty of negligence in failing to slacken speed and stop the train held, tinder the evidence, fbr the jury.</p> <p>3. Negligence —Care in emergencies.</p> <p>Persons required, to act in sudden emergencies under peculiar circumstances are not charged with that degree of caution required in other cases.</p> <p>4. - Railroads <S=»S50(31) — Negligence of driver of team balking on crossing QUESTION FOR JURY.</p> <p>In an action for injuries to one whose team, after running away, balked on the track until a train struck the wagon, the direction of a verdict for defendant on the ground that plaintiff was negligent as a matter of law held improper under the evidence.</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Eastern District of Oklahoma; Ralph E. Campbell, Judge.</p> <p>Abraham Skuy was convicted of perjury, and brings error.</p>

In Error from the District Court of the United States for the Western District of Texas; William R. Smith, Judge. Herman Bloch was convicted under Act Feb. 13, 1913, of receiving or having in his possession property stolen from an interstate shipment, knowing the same to have been stolen, and he brings error.

<p>Petition for Revision of Proceedings of the District Court of the United States for the Western District of Texas; Duval West, Judge.</p> <p>In the matter of E. H. Peyton, bankrupt; Edgar E. Witt, trustee, and the Fanners’ National Rank of Hillsboro, Tex., objecting creditor. On petition of bankrupt to revise an order of the District Court.</p>

Campbell, Judge. Proceeding by the United States against one Studebaker Six automobile, in which the Commercial Investment Trust, a corporation, filed an interplea claiming the machine. There was judgment condemning the automobile, and claimant brings error.

<p>Appeal from the District Court of the United States for the District of Kansas; John C. Pollock, Judge.</p> <p>Suit in equity by Minnie B. Creighton and another against Margaret Creighton and others. Decree for complainants, and defendants appeal.</p>

Meek, Judge. J. 15. Pollard was convicted of violating Selective Draft Act, § 13, by maintaining a house of ill fame within five miles of a military camp, and lie brings error.

<p>1. Internal revenue <@=>9 — Evidence insufficient to show income within CORPORATION EXCISE TAX PLAN.</p> <p>There was no income, within Corporation Excise Tax Daw Aug. 5, 1909, § 38. where a corporation, pursuant to a scheme oi recapitalization, organized another corporation, conveyed properties to it, constituting all its assets, received therefor its entire stock, except directors’ shares, of greater par value than the price paid for the properties, distributed the shares, after formally valuing them at par, among its own stockholders, and then effected a merger between the two corporations.</p> <p>2. Trial <@=>139(1) — Sufficiency of evidence to go to jury.</p> <p>Though one party’s evidence, standing alone and unexplained, shows profits in a transaction, yet when explained by evidence for the other party, in no respect inherently unreasonable, improbable, or .inconsistent with that for the first party, or shown unreliable, the whole evidence is susceptible only of the inference that there was no profit, there is no question of fact for the jury.</p> <p><§s»For other cases see same topic & KEY-NUMEER in all Key-Numbered Digests & Indexes</p>

Ralph E. Campbell, Judge. Suit in equity by the Choctaw, Oklahoma & Gulf Railroad Company and the 'Chicago, Rock Island & Pacific Railway Company against B. W. Mackey, County Treasurer of Hughes County, Old., and others. Decree for complainants, and defendants appeal.

<p>1. Bankruptcy <§=>296 — Jurisdiction of bankruptcy courts to set aside FRAUDULENT CONVEYANCE.</p> <p>■ Under Bankruptcy Act July 1, 1898, §§ 60b, 67e (Comp. St. §§ 9644, 9651), .the District Court for Illinois, sitting as a bankruptcy court, has jurisdiction of a bill by a trustee to set aside as fraudulent and preferential a conveyance by the bankrupt made within four months of the filing of the petition, even though the bankrupt and his grantee were both citizens of Illinois, and the land was located in that state.</p> <p><§=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>2. Bankruptcy 0=^100(1) — Effect of adjudication on collateral attack.</p> <p>In a suit by a trustee in bankruptcy to set aside a conveyance made by the bankrupt within four months of filing petition, the adjudication in bankruptcy is not open to collateral attack, and the grantee cannot defend on the ground that the trustee was wanting in legal capacity to accept the post of trustee or that his grantor was not in fact bankrupt.</p> <p>3. Bankruptcy <£»1U0(1) — Scope of adjudication as to fraudulent character OF TRANSFER CHARGED AS ACT OF BANKRUPTCY.</p> <p>Though ihe petition on which adjudication in bankruptcy was had charged that a conveyance was an act of bankruptcy on the part of the grantor, the grantee may, in a suit, by the trustee to set aside the conveyance, controvert the trustee’s allegations and proofs with regard to the grantee's guilty knowledge and fraudulent conduct.</p> <p>4. Bankruptcy <@=s>290 — Defenses to action to set aside conveyance as FRAUDULENT.</p> <p>In a suit by the trustee to set aside a conveyance made by the bankrupt within four months of the tiling of the petition, the grantee cannot defend on the ground that, the rents of tlie properly which was in the possession of a receiver wore sufficient to pay all claims filed in the bankruptcy court; it not appearing that the grantee consented to such use of rents, which, in event of decree sustaining the conveyance, would belong to him.</p> <p>5. Bankruptcy <£»305- -Scope of suit to set aside fraudulent conveyance.</p> <p>In a suit by a trustee in bankruptcy to set aside as fraudulent and preferential a conveyance made by the bankrupt within four months of filing of the petition, tile questions whether unexpended balance of funds, if any, should bo returned to defendant, etc., are without the scope of the jurisdiction of the chancery suit.</p> <p><3r»3?or other cases see same topic & Ktsy-NUMBEIU in all Key-Numbered Digests & Indexes</p>

<p>Appeal and error @=»499(1), 501(1) — Record of objections and exceptions TO PRESENT QUESTION FOR REVIEW.</p> <p>The Circuit Court of Appeals is exclusively a court for the review of errors of law made in an action at law, and a record of an objection and' exception to any rulings, where the case is tried to the court, is ordinarily indispensable to a review.</p> <p>other eases see same topie & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Error to- the District Court of the United States for the Northern District of Texas; Robert T. Ervin, Judge.</p> <p>Action by R. W. Haynie, trustee in bankruptcy of T. .1. Brown & Co., against the J. M. Radford Grocery Company. There was a judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Oklahoma; Ralph E. Campbell, Judge.</p> <p>Suit by the United States and others against C. R. Privett, John O. Mitchell, and J. E. Crosbie. Decree for complainants, and defendants appeal.</p>

<p>Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>Suit by Charles S. Neil against the Ontario Paper Company, Limited. Decree for libelant, and respondent appeals.</p>

In the matter of Edward W. Morrison, bankrupt. From a decree of the District Court, approving the referee’s allowance of the claim of Charles S- Rieman, the bankrupt appeals.

<p>Appeal from the District Court of the United States for the Northern District of Texas; Edward R. Meek, Judge.</p> <p>Suit by Val do F. Wilson against J. E. Spencer. From a decree for defendant, complainant appeals.</p>

Suit by the Strauss Bascule Bridge Company against the City of Chicago. Decree for. complainant, and defendant appeals. Appellant was found to be an infringer of claims 9 and 10 of patent No. 995,813, granted June 20, 1911, to J. B. Strauss, for improvements in bascule bridges. Those claims read as follows: “9.

<p>Appeals and Cross-Appeals from the District Court of the United States for the Western District of Pennsylvania; W. 11. Seward Thomson, Judge.</p> <p>Suits by the Window Glass Machine Company and another against the Consolidated Window Glass Company, against the Pennsylvania Window Glass Company, and against the Kane Glass Company, which were consolidated. From a decree for complainants, but which denied some of the relief sought, the several defendants appeal, and complainants assign cross-errors.</p>

Trippet, Judge. Suit by the Dunkley Company and the Michigan Canning & Machinery Company against the Pasadena Canning Company and George EGrier. Decree for defendants, and complainants appeal.

<p>1, Patents <@=>328 — Fob process for making mineral wool valid and infringed.</p> <p>The t’arkison patent, No. 915,583, for process of making mineral wool, hold not shown to bo invalid for prior public use, and hold valid and Infringed.</p> <p>2. Patents <@=>81 — Prior public use.</p> <p>Proof of prior public use of a patented article or process, to defeat tne patent, must be such as to leave no doubt of the prior public use moro than two years before application for the patent, and in general oral testimony as to date of such prior use should find corroboration in evidence ol' contemporaneous records, or memoranda, or physical exhibits.</p> <p><@=>Fo* other cases see same topic & KEY-NUMBER in all Key-Numberea Digests & Indexes</p>

<p>In Equity. Suits by Joseph F. Wireback and by said Wireback and others against Thomas D. Campbell and others, partners doing business as tlie Maryland Orthopedic Company.</p>

<p>In Equity. Suit by Marconi Wireless Telegraph Company of America against De Forest Radio Telephone & Telegraph Company.</p>

<p>1. Judgment <®=>G75(1) — Conclusiveness of decree finding patent valí» AND INFRINGED.</p> <p>A final decree, finding a patent valid and infringed, rendered in a suit against a purchaser from defendant, which manufactured tile alleged infringing articles, is a conclusive adjudication as to those matters binding on defendant, where defendant participated in the litigation and its counsel openly conducted the defense.</p> <p>2. Patents <®=»22 — Mechanical equivalents.</p> <p>The doctrine of mechanical equivalents can be invoked in all patents.</p> <p>3. Patents <©=399 — For horn for phonographs valid.</p> <p>A patent for a device which performs a novel and useful function, as a patent for a horn for phonographs which did away with the annoying tintinnabulations, is entitled to protection, where the specifications disclose the method, even though the inventor is ignorant of the scientific principles involved.</p> <p>4. Patents <3==>.‘528 — For metal horn for phonographs valid.</p> <p>The Nielsen patent, No. 771,411, for a metal liorn for phonographs, made of longitudinally connected strips of metal, held valid, doing away with the annoying vibrations and tintinnabulations of other horns.</p> <p>^=»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>5. Patents <§=>81 — Prior use.</p> <p>Oral testimony as to prior use of a patented device should be scrutinized .most carefully.</p> <p>6. Patents <§=>81 — Presumptions in favor of validity.</p> <p>Every reasonable doubt should be resolved against one'attacking the validity of a patent, particularly when the attack is based on oral evidence of facts long past relied on to prove prior use.</p> <p>7. Patents <§=>62 — Proof of anticipation.</p> <p>Anticipation of a patent should be established, not merely by testimony of witnesses relating to facts many years previous, but by concrete, visible, contemporaneous proofs, and the proof must establish a clear conviction, and something more than .oral testimony, even of the highest character, is required, when- there has been a considerable lapse of time.</p> <p>8. Patents <§=>328 — For horns for phonograph not anticipated.</p> <p>The Nielsen patent, No. 771,441, for horns for phonographs, held not invalid on the grounds of anticipation and prior use.</p> <p>9. Estoppel <§=>52 — What constitutes equitable estoppel.</p> <p>Where a person, by anything which he does or says, or abstains from doing or saying, when it is his duty to act or speak in respect of a subject-matter, intentionally causes or permits another person to believe a thing to be true, and to act upon such belief otherwise than he would have acted, but for that belief, and he so acts, and materially changes his position in respect of the matter to his detriment, then the first person is not allowed, in a suit between himself and such other person, to deny the truth of the thing done or stated.</p> <p>10. Patents <§=>289 — Delay in prosecuting other infringers not laches.</p> <p>Delay in prosecuting other infringers while the validity of a patent is in active litigation does not constitute laches.</p> <p>11. Patents <§=>289 — Delay in prosecuting for infringement not laches.</p> <p>Where the owner of a patent promptly protested against infringement, and the infringer was in no way misled or induced to change its position, several years’ delay in instituting suit for infringement of a patent does not constitute laches, which will bar relief; it appearing during a considerable period of the time negotiations for settlement were continued between the parties, and the owner of the patent, before suing, established the validity of the patent in litigation against others.</p> <p><@c?>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes ,</p>

<p>In Equity. Suit to quiet title by the Daniels & Fisher Realty Company against Sarah M. Kenyon. On motion by plaintiff to strike the answer and cross-complaint.</p>

<p>Seamen <®==>7 — Shipping articles; validity.</p> <p>Shipping articles for a voyage from Baltimore “to such ports or places in any part of the world” as the master may direct, back to a final .port in the United States, for a term not exceeding six months, held too indefinite and uncertain as to the voyage and services contracted for, and void, under Rev. St. §§ 4511, 4523 (Comp. St. §§ 8300, 8314).</p> <p><§c^For. other cases see same topic & KEY-NUMBER in 8,11 Key-Numbered Digests & Indexes</p>

<p>In Admiralty. Suit by the State of Maryland, to the use of Christian Lund and Anna K. Lund, his wife, against the Atlantic Transport Company and the Bethlehem Steel Company.</p>

H. W. Buckingham and Virgil Clover were convicted of violating Rev. St. § 3258, by having in their possession and custody a still and distilling apparatus set up, without having registered the same with the collector. On motion by defendant Bucltingham to be released from custody.

<p>1. Trade-marks and trade-names <S=3(4) — Descriptive name.</p> <p>Tbe word “Vogue,” used as the name of a magazine, the contents of which relate, not only to fashions, but also to other matters’Of household interest, is not so descriptive as to preclude its use as a common-law trade-mark.</p> <p>2. Trade-marks and trade-names <9=59(3) — Infringement by use 'of “Vogue” as title of magazine.</p> <p>On motion for preliminary injunction, the trade-mark ‘Vogue,” as the name of a magazine, helé infringed by the use of “La Vogue Parisienne” as the name of another publication.</p> <p><@=For other oases see same topic & KEY-NUMEER in all Key-Numbered Digests & Indexes</p>

<p>In Admiralty. Suit for collision by Alphone Sutter and another against the City of New York.</p>

<p>Taxation <S=>5 — Propertx of United States Shipping Board not subject OF TAXATION.</p> <p>Property acquired and owned by the United States Shipping Board Emergency Fleet Corporation, owned and operated solely by the United States for governmental purposes, held not subject to state taxation.</p> <p>(gs^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Mortgages <@=>350 — Length of publication of notice of foreclosure sale.</p> <p>Under Act March 3, 1893, § 3 (Comp. St. § 1642), requiring notice of sale of real estate under decree by publication “once a week for at least four weeks prior to such sale,” the first publication must be at least four weeks prior to date of sale.</p> <p><@E»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Equity. Suits by the Photoplay Publishing Company against the Da Verne Publishing Company, Incorporated, and the Central Press Company, Incorporated, and against Frank T. Eastlack and others.</p>

<p>1. Bankruptcy <§=228 — Review of referee’s order ; papers considered on REAEGUMENT.</p> <p>On reargument on certificate for review of order of referee, an amended petition not before the referee cannot be considered.</p> <p>2. Bankruptcy <§=372 — Closing of estate ; final meeting of creditors.</p> <p>The estate is not technically closed, notwithstanding the referee’s declaration of closing; there having been no final meeting of creditors on notice, as provided by Bankruptcy Act, §§ 55f, 58 (Comp. St §§ 9639, 9642).</p> <p>3. Bankruptcy <§=372 — Void declaration of closing estate; order of reopening to collect assets.</p> <p>Bankrupt’s estate, not being technically closed, because of no final meeting of creditors, notwithstanding referee’s declaration of closing, is still open on the original reference for collection of assets and administration, and order to reopen is superfluous.</p> <p>4. Bankruptcy <§='418(1) — Power of bankruptcy court over concealed assets after discharge.</p> <p>. The estate not having been technically closed, though bankrupt has been' discharged, with the effect, under Bankruptcy Act, §§ 1, 17 (Comp. St. §§ 9585, 9601), of releasing him from his provable debts, notwithstanding lapse of the time limited by sections 15 and 29d (sections 9599, 9613) for revoking his discharge and prosecuting him for concealing assets of the estate, the power of the bankruptcy court under section 2(7), being section 9586, to collect assets concealed by bankrupt and others, title to which was under sections 21e and 70 (sections 9605, 9654) vested in the trustee by the adjudication, continues and may be exercised by summary proceedings, with appropriate process.</p> <p><§^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Admiralty <§=j60 — Determination of nature of action from whole libel.</p> <p>Whether a case in admiralty is ex contractu or ex delicto is to be determined from an examination of tlie allegations of the whole libel, and not alone from its opening statement.</p> <p>2. Shipping <®=*58(2) — Burden of proof in action against bailee of ship.</p> <p>While it is the general rule that, in an action ex delicto, the libelant has the burden of proving negligence, yet where a scow was injured while in the exclusive possession of respondent as bailee, the burden was on respondent to show bow the injury occurred, and that be was free from negligence.</p> <p>3. Shipping <®==>42 — Implied warranty by charter of vessel.</p> <p>The letting of a ship for a specific purpose is an assurance amounting to a warranty that she is sufficient for the use for which she is devoted; for by general admiralty law a ship must be satisfactory and competent for the sort of cargo and particular service in which she is engaged.</p> <p>4. Shipping <®=a54 — Negligence in foundering of scow.</p> <p>Respondent, to whom libelant chartered a mud scow for carrying lumber, held, under the circumstances, not guilty of negligence, so as to be liable for the sinking of the scow, which, though it was loaded by careful stevedores, listed and sank.</p> <p>^saFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>5. Shipping <@=>54 — Cake by chaetekee op sunken vessel.</p> <p>Kespondent, who chartered a mud scow for. transportation of lumber, held not guilty of negligence in caring for the scow after it had listed and sank; it appearing that respondent sent for a schooner on which it was proposed to transship the lumber, but the coming of the schooner was delayed, due to fog, and in the meantime respondent made no effort to raft the lumber from the scow.</p> <p>£s»Fbr other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

At Law. Action by the Commonwealth Finance Corporation, assignee, against Philip Landis (No. 6326), in which the Emergency Fleet Corporation was summoned as garnishee; action by Joseph TL Kinney against the Fairbanks Steam Shovel Company (No. 5328), in which the United States Shipping Board Emergency Fleet Corporation was summoned as garnishee; and actions by James P. Judge (No. 6404) and the N. W. Lawton Lumber Company, a corporation (No. 6286), against the United States…

<p>In Bankruptcy. In the matter of the Elk Brook Coal Company, bankrupt. On petition of trustee to restrain forfeiture of lease.</p>

Divorce suit by John W. McKitrick against Katherine T. McKitrick; James G. Duncan being joined as corespondent. From a decree granting plaintiff an absolute divorce on the ground of adultery, defendants appeal.

<p>Appeal from' the Supreme Court of the District of Columbia.</p> <p>■ Action by Aaron P. Prioleau against South Trimble. From adverse judgment, plaintiff appeals.</p>

. In Error to the Police Court of the District of Columbia. Frank Leitch 'was convicted of violating the presidential regulation of July 3, 1918, issued under authority of Act May 18, 1917, authorizing the Commander-in-Chief to make regulations concerning the prohibition of alcoholic liquors in or near military camps, and he brings error.

<p>Appeal from the Supreme Court of the District of Columbia.</p> <p>Action by Phillip T. Carter against Clifford A. Borden. From judgment for plaintiff, on appeal from the municipal court, defendant appeals.</p>

Proceeding by Walter Stilson Hutchins and another, executors, for probate of the will of Stilson Hutchins, deceased. From an order, made without new trial, after judgment for Dee Hutchins, caveator, had been reversed, and cause remanded, said caveator appeals.

<p>Landlord and tenant <0=167(5) — In.tuby fbom defective sidewalk; owner LIABLE NOTWITHSTANDING LEASE.</p> <p>The owner of a building is liable to a pedestrian, injured by defect in glass in sidewalk to light vault underneath, though all of basement and first floor are leased to one party.</p> <p>(gjssFor other cases see samo topic & KISY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the Northern District of Georgia; "William T. Newman, Judge.</p> <p>Suit in equity by Alfred R. Swann against W. W. Austell, executor, and others. Decree for defendants, and complainant appeals.</p>

JBourquin, Judge. Actions by the Stockmen’s National Bank of Et. Benton, Montana —one against the Twin City Eire Insurance Company, and tha other against the Home Insurance Company of New York. Judgments for plaintiff, and defendants bring error.

Amidon, Judge. Suit by Arno Kresse, in the nature of an interpleader, against the Frank I,yucli Company and the National City Bank of Chicago. From a decree in favor of the latter, the former appeals.

<p>1. Aliens New, vol. 7 Key-No. Series — Cancellation of certificate OF NATURALIZATION TSSUKD TO ALIEN ENEMY; “ILLEGALLY.'’</p> <p>Under Naturalization Act .Tune 29. 1906, § 15 (Comp-. St. § 4374), making it the duty of the United States attorneys to institute proceedings in any court having jurisdiction to naturalize aliens, for the purpose of setting aside and canceling a certificate of citizenship on the ground of fraud, or on the ground that it was illegally procured, a certificate of naturalization issued to an enemy alien during time of war may be attacked on the ground that it was issued in violation of Rev. St. § 2171; the word “illegally” meaning contrary to law.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Illegally.]</p> <p>jg^sFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>2. Judgment @=470 — Direct and collateral attack distinguished.</p> <p>A judgment of a court that had jurisdiction of tho subject-matter and the parties is impervious to collateral attack in_ other courts, or in the same court,/though erroneous in law, but not to direct attack.</p> <p>3. Aliens @=71%, New, vol. 7 Key-No. Series — Proceeding to canoel certificate OF NATURALIZATION DIRECT ATTACK ON JUDGMENT.</p> <p>The procedure prescribed by Naturalization Act June 29, 1906, § 15 (Comp. St. § 4374), for attack on a certificate of naturalization on the ground that it was procured by fraud, or illegally issued, is a direct, and not a collateral, attack.</p> <p>4. Aliens @=71%, New, vol. 7 Key-No. Series — Attack on certificate of NATURALIZATION ISSUED BY STATE COURT; PROTECTION OF STATE SOVEREIGNTY.</p> <p>The naturalization of aliens is exclusively a federal function, though Congress allows state tribunals to issue certificates; hence, as Naturalization Act June 29, 1906, § 15 (Comp. St. § 4374), providing for cancellation of certificates of naturalization procured through fraud or illegally issued, places states and federal courts on a parity, one to whom was issued a certificate of naturalization by a state court, though he then was an enemy alien, cannot defeat proceedings in the federal court to cancel the certificate on the ground that the proceeding encroached on state sovereignty.</p> <p>5. Constitutional law @=74 — Validity of provisions fob attacking certificate OF NATURALIZATION.</p> <p>As Congress may properly commit to the federal courts the judicial inquiry whether an administrative act has been legally performed, Naturalization Act 1906, § 15 (Comp. St. § 4374), providing for proceedings to cancel certificate of naturalization procured illegally or through fraud, is valid, inasmuch as the issuance of a naturalization certificate may be deemed an ex parte matter of essentially an administrative nature.</p> <p>6. Statutes @=158 — Repeals by implication.</p> <p>Repeals by implication are not favored.</p> <p>7. Aliens @=61 — Enemy alien not entitled to naturalization though HIS APPLICATION WAS FILED BEFORE WAR. ■</p> <p>In view of the history of legislation, Rev. St. § 2171, declaring that no alien, who is a native citizen, or subject, or denizen of any country, state, or sovereignty with which, the United States are at war at the time of his application, shall be then admitted to citizenship, an alien, who filed a petition prior to declaration of war between the United States and the country of which he was a subject, cannot be admitted to citizenship after declaration of war, on the theory that the Naturalization Act of 1906, requiring 90 days’ notice before hearing, changed the law.</p> <p>S3=>.For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Appeal and error <§=>323(1) — United States marshal as necessary party.</p> <p>Where plaintiff sued to enjoin tbe assignees of a judgment, as well as the United States marshal, from further proceeding under an execution issued on the judgment, whereby it was sought by the assignees to exercise a claimed right of redemption of real property which once had belonged to the judgment debtor, an appeal by the assignees from an adverse judgment will not be dismissed, because the marshal did not join, for in any event the assignees were the real parties in interest.</p> <p>2. Courts <§=>264(2) — Ancillary jurisdiction oe federal court.</p> <p>When a United States marshal, under an execution issued by the federal court, seizes property, the state courts have no jurisdiction to protect the property so illegally invaded, and the remedy of one whose property is taken is by ancillary proceeding in the federal court.</p> <p>3. Courts ©=264(2) — Ancillary jurisdiction of federal coubt.</p> <p>Where defendants, proceeding under execution on judgment of the federal court, attempted to exercise asserted rights of redemption of real property, which had once belonged to the judgment debtor, hut which plaintiffs had acquired under mortgage foreclosures, held that, though all the parlies were residents of Colorado, proceeding by plaintiffs to restrain defendants from further exercising such rights is ancillary to the judgment of the federal court, and so within its jurisdiction.</p> <p>4. Courts ©=262(2) — Adequate remedy at law as defeating ancillary suit IN EQUITY IN FEDERAL COURT.</p> <p>Where defendants, assignees of a judgment of the federal court, attempted under execution issued on the judgment to exorcise claimed rights of redemption as to lands which once belonged to the judgment creditor, and which had been acquired by plaintiffs after mortgage foreclosure. held, that plaintiffs liad no adequate remedy at law, and might by ancillary suit in the federal court restrain defendants from further proceeding.</p> <p>5. Injunction ©= 114(2) — Vendor proper party to suit to protest title.</p> <p>A vendor of land, who had acquired the same on mortgage foreclosure, etc., is a proper parly plaintiff to a proceeding by his grantee, who had refused to pay the balance of the purchase price, to restrain third persons from asserting claimed rights of redemption in the land, by virtue of execution on a judgment rendered by the federal court against oue who had originally owned the property, and who lost the same on mortgage foreclosure.</p> <p>6. Courts ©=343 — Waiver of objections to parties under federal equity rules.</p> <p>Under equity rulo 29 (198 Fed. xxvi, 115 O. C. A. xxvi), where defendants filed a plea of misjoinder of parties, thus raising a question of law, and proceeded to trial on the merits without having that question set down for hearing in accordance with the rule, defendants waived the right to object to such misjoinder.</p> <p>7. Appeal and error ©=1009(3) — Beview of findings of fact by chancellor.</p> <p>Findings of fact by a chancellor on conflicting evidence will be deemed to be presumptively correct on appeal, and unless an obvious error has intervened in the application of the law, or some serious mistake has been made in consideration of the evidence, they will not be disturbed.</p> <p>8. Mortgages ©=594(2) — Bight of judgment creditors to redeem from foreclosure sale.</p> <p>The Colorado statute, giving judgment creditors the right to redeem from foreclosure sales land which liad belonged to tbe judgment debtor, gives judgment creditors only the right of the judgment debtor.</p> <p>9. Mortgages ©=599(1) — Time for redemption by judgment creditor after foreclosure.</p> <p>Where the owner of an interest in land which was subject; to deed of trust had conveyed samo to the president of a national bank to secure a loan, and the deed was foreclosed as a mortgage, and the property bought in by the president for benefit of the bank, and the owner quitclaimed to tiie hank any interest which he might have, and thereafter the bank acquired the original note secured by a deed of trust, and had the same foreclosed, held, that judgment creditors of the owner could not thereafter redeem the property; the nine and six months period allowed for redemption having long since passed, and any title of the judgment debtor having been divested years before the first deed of trust was foreclosed.</p> <p>©=For other cases see same topic & KffiY-NUMBKK in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the Eastern District of Missouri; David P. Dyer, Judge.</p> <p>Suit by Bettie G. Weakley against George C. Harris and others, in which W. S. Fryer and another intervened, being substituted as defendants. From an order appointing a receiver, the substituted defendants appeal.</p> <p>This is an appeal from au order of the District Court made on December 12, 1918, appointing a receiver of a certain tract of land in Dunklin county, Mo., worth about $75,000, and of the rents and profits thereof, worth about $5,000 annually, on the petitions for such a receiver of the plaintiff below, Bettie G. Weakley, and also on the opposing affidavits of the defendants W. S. Fryer and G. L. Fryer. The defendants appealed, and they assailed the order on the grounds: (1) That at the time it was made the District Court was without jurisdiction of the subject-matter of and of the parties to the suit, because the plaintiff and the defendants were all citizens and residents of the state of Tennessee; and (2) that on the proof presented to the District Court the appointment of a receiver was contrary to the rules and principles of equity jurisprudence. The proof on the part of the plaintiff consisted of several affidavits made by the single affiant, T. F. King, the agent and attorney in fact of the plaintiff, to her complaint, and to her petition and supplemental petition for a receiver, and it consisted on the part of the defendants of separate affidavits of the defendants W. S. Fryer and G. L. Fryer. There was no denial of any fact alleged in the affidavits of the Fryers, except by some counter statements in the complaint or in the petitions verified by King. There is nothing in the record to indicate that King was more familiar with the facts or more truthful than either of the Fryers.</p> <p>The burden of proof of the facts requisite to sustain the order for the receiver was on the plaintiff, and therefore, where King’s affidavits aver, and the affidavit of one or the affidavits of both of the Fryers contradict such averment, it must be deemed to be unproved. For example: One of the pleadings verified by King alleges that each of the Fryers is insolvent; another that the plaintiff was in possession of the land when this suit was brought. Each of the Fryers avers in liis affidavit that he is solvent, and that he is worth at least $6,000 above his liabilities, and W. S. Fryer testifies that he has been in possession of the land ever since the death of Dr. H. N. Fryer on April 7, 1915, and still is, together with his brother, G. L. Fryer, so in possession thereof; that he has rented it to tenants during this time, who were in possession under his leases at the time this suit was commenced, tenants who have made and delivered to him or G. D. Fryer annual rental notes payable to the plaintiff and himself, which he or G. L. Fryer have collected. The plaintiff admits and charges that the Fryers have collected these rents and have failed to account for some of them, and the Fryers have testified in their affidavits that they have collected the rents and fully accounted for-and paid over to the plaintiff her full share of them. In this state of the evidence the Fryers must be found to be solvent, and the possession of the land to have been in W. S. Fryer or G. L. Fryer through the tenants, who were in possession and were attorning and paying the rents to them, when this suit was commenced and ever since. Considering the evidence according to this rule, and laying aside matters irrelevant to the issues presented here, the pertinent facts are these:</p> <p>W. S. Fryer was the nephew of G. N. Fryer, who was a capitalist. He lived with his uncle, G. N. Fryer, from 1909 until some time in 1914, when he went to Hot Springs, Ark., for his health. He had devoted his labor and energies to the development of his uncle’s property, who had paid him nominal wages under an understanding between them that he would provide for him in the final disposition of his property. Pursuant to this arrangement Dr. Fryer executed and delivered a. written instrument on November 13, 1913, which was recorded on November 15, 1913, whereby he leased, demised, and let to his sister-in-law, Bettie G. Weakley, the plaintiff, the land in controversy, to have after his death for her natural life only, and appointed his nephew W. S. Fryer “agent and attorney in fact to take charge of said lands after my death, and manage the same, rent out, and collect the rents, taking notes in the name of said Bettie G. Weakley and his name, and keep up the land, making necessary repairs and pay the taxes out of the rents. After all expenses are paid as above mentioned, he, the said William S. Fryer, is to have and retain one-half of the net amount of the rents as his own, and to pay to the said Bettie G. Weakley the other one-half, and make annual settlements with her.”</p> <p>About October 1, 1914, while W. S. Fryer was ill at Hot Springs, the plaintiff conveyed back to Dr. Fryer her interest in this land, and on the same day he executed an instrument whereby he demised, leased, and let the same land to her after his death for her natural life only, and appointed his son-in-law, T. F. King, agent and attorney in fact to do the same things W. S. Fryer was appointed to do in the instrument of November 13, 1913, and provided that he should be allowed his necessary expenses in so doing “and any additional compensation she fthc plaintiff] may see lit to allow him.” On January 26. 1016, tlie plaintiff brought suit in equity against W. S. Fryer, in which she pleaded the instruments of November 13, 1913, and October 1, 1914, made similar allegations regarding those instruments to those made by her in this suit, and prayed that tho former be adjudged void, the latter valid, and that the management and control of the land and of all the rents and profits be decreed to belong to X. F. King. On November 22, 1916, the plaintiff, through her attorneys in that suit, in consideration of §1,606 then paid to her, through her attorneys of record in that suit, by W. S. Fryer, made a written contract of compromise and settlement of all matters in controversy between them to this effect: That the instrument of November 13, 1913, should be recognized as'a valid instrument with these changes: (a) That plaintiff, instead of being paid by TV. S. Fryer annually one-half of the remainder of the proceeds of the rents and profits of the land after the payment of tlie taxes, repairs, etc., should be paid by him annually $2,750, commencing on November 15, 1917; (b) that W. K. Fryer or his agent or attorney should collect and have for his own all tho rents fertile years 1915 and 1916, except those which had boon already received by the plaintiff, and should pay the plaintiff $115 and the cost of that suit. W. S. Fryer paid to the plaintiff's attorney of record, and she received, the $].- 606, and the Dunklin county court on November 22, 1916, rendered a decree in which the terms of tills compromise were embodied. Thereupon, on November 27, 1916, W. S. Fryer sold his beneficial interest, under the compromise agreement and the instrument of October 18, 1913,■ to G. D. Fryer for 80 acres of land and other valuable considerations. In December following the plaintiff filed a petition in the compromised suit in the Dunklin county court to set aside its decree: that petition was granted over the objection of TV. S. Fryer, and he excepted to that ruling. The plaintiff then dismissed that suit, and thus depilved W. 8. Fryer of his exception.</p> <p>Tn 1917 the plaintiff brought a suit in the federal court below against TV. S. Fryer and G. D. Fryer and some of the tenants on the property, in which she made the same claims that she had made in her Dunklin county suit, and that she now makes in this suit, and alleged that the Fryers had collected and appropriated to their own use $4,000 or $5,000 of Hie rents collected from the tenants on the property, and later she dismissed that suit. On April 17, 1917, she brought this suit against George C. Harris, O. L. Harris, Walter L. Carey, and D. G. Julian, tenants on the jiroperty, who were residents and citizens of the state of Missouri, while she was a resident and citizen of tlie stale of Tennessee. She pleaded in her complaint the instruments of November 13, 1913, and October 1, 1914; the plaintiff’s conveyance of her interest in mo land to Dr. Fryer on October 1, 1914, before he executed his instrument of that date; that she took possession of the proiierty, rented it to the defendant tenants, and put them in possession through her agent, King, after Ihe death of Dr. Fryer, an allegation which, in view of the affidavit of the Fryers, cannot be held to have been established when the order for tho receiver was made; that in 19J6 W. S. Fryer and G. L. Fryer procured from tho defendant, tenants rental notes, wherein they agreed to pay the rent for the year 1917 to William S. Fryer and George D. Fryer, an averment regarding which the proof is that the Fryers took rental notes to the plaintiff and TV. S. Fryer for the year 1917 in accordance with the exact terms of the instrument of November 13, 1913, and tlie compromise agreement; that tho action of the defendant tenants in contracting to pay rent to W. S. Fryer and G. Tj. Fryer was a fraud upon the plaintiff’s rights; that unless restrained by the court the defendant tenants would pay their notes, and make notes for future years, and pay tlie rental to the Fryers in breach of their obligation to the plaintiff to jiay rent to her, allegations regarding which the weight of the evidence is that the defendant tenants would and did make rental notes to the plaintiff and W. S. Fryer, and pay them to him or to G. D. Fryer, who paid the repairs and taxes, and accounted for and paid to the plaintiff ono-half the remainder of the proceeds of the rents pursuant to the instrument of November 13, 1913. The plaintiff further alleged that the defendants were insolvent. The relief the plaintiff asked was that the defendant tenants be on-Joined from paying tbeir rental notes to the Fryers, or to any one but a receiver appointed by the court; that at the final hearing she have a decree, (a) that she is the sole owner of the land during her life; (b) that the defendant tenants have no right to pay rent to W. S. Fryer, or any other person than the plaintiff; (c) that the claim of the defendant tenants through Fryer is a cloud on her title, that it be removed, and that they be enjoined from paying any rents or executing any rental notes for future rents to Fryer, or any one but the plaintiff or her agent; (d) that the plaintiff have an accounting of rents wrongfully paid by the defendant tenants to the Fryers; and (e) that a receiver of the property and the rents due and to becoine due be appointed.</p> <p>On April 24, 1917, the defendant tenants answered that they had no interest in the outcome of the suit, that they would pay the rents in the year 1917 and thereafter to whomsoever the court should direct them to pay them, and that the rents for 1916 had been paid. On July 14, 1917, W. S. Fryer and G. L. Fryer filed their intervening petition in this suit, in which they asserted their right to the share of the rents granted to W. S. Fryer by the instrument of November 13, 1913, and prayed that they might be made defendants in lieu of the tenant defendants. Thereupon, on the same day, by consent of the parties to the suit, the court ordered that W. S. Fryer and G. D. Fryer be permitted to intervene and be substituted in place of the tenant defendants. On February 14, 1918, the plaintiff filed a petition for a receiver. On-December 6, 1918, she filed an amended petition, and on December 14, 1918, the receiver was appointed. The petitions for the receiver charge that the Fryers have rented and cob lected the rents of the property, and have not accounted for or paid over even one-half of the surplus proceeds thereof above the taxes, repairs, etc., according to the provisions of the instrument of November 13, 1913, while the plaintiff was and is entitled to all of that surplus under the provisions of the instrument of October 1, 1914. The weight of the evidence at the hearing, and hence the fact proved, was that the Fryers have r.ented the property and taken annual rental notes payable to the plaintiff and W. S. Fryer for the years 1916, 1917, 1918, and 1919, and that they had collected these rents for 1916,1917, and 1918, had paid the taxes, etc., on the land, and had accounted for and paid over to the plaintiff all that she was entitled to receive according to the terms of the instrument of November 13, 1913, but that they had retained one-half of the surplus to which they were entitled thereunder, but which the plaintiff claims.</p>

<p>1. Criminal law <S==>37 — Defense of entrapment.</p> <p>If an officer of the law has reason to believe that a crime is being committed, ho may lawfully proceed to ascertain whether those charged with the commission are actually committing it or are otherwise criminally implicated; 1he detection of crime being distinguished from inducing the wrongdoer to commit the crime detected.</p> <p>2. Criminal law <5==>37i(l) — Evidence of other offenses as showing intent.</p> <p>On trial of defendants for violating the Espionage Act of June 15, 1917, as amended by Act May 16, 1918 (Comp. St. 1918, § 10212c), by publishing and distributing seditious literature, admission of other publications distributed by them held not error, as limited to the question of intent.</p> <p>3. Criminal law <S=»1158(3) — Review of competency of jurors.</p> <p>The finding of the trial court upon the strength of a juryman’s opinion, and his partiality or impartiality, will not he set aside by a reviewing court, unless error is manifest.</p> <p>^ss>Foi other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the Eastern District of Oklahoma; Ralph E. Campbell, Judge.</p> <p>Suit in equity by the United Stales against John Hinkle and others. Decree for defendants, and complainant appeals.</p>

<p>At Law. Action by the United States against James K. Moore.</p>

<p>1. Shipping <8=54 — Liability of chaeiheeb foe injury to vessel in windstorm.</p> <p>A railroad company, having chai-ge of a chartered coal barge for loading at its dock, which it moved with its own tugs, and which, when partly loaded, placed the barge at the end of a pier, in disregard of storm signals displayed'by the Weather Bureau but a few hundred feet distant, and left It there, exposed to a severe windstorm for several hours, after being notilied by its captain that it was in danger, held liable for its injury while in such position.</p> <p>2. Shipping <8=51 — Liability of charterer for injury to vessels in windstorm.</p> <p>A railroad company, having charge of a fleet of chartered coal barges to be loaded at its dock, which moored them in tiers to stakes in the open bay, held to assume the risk from storms to which they were exposed, and liable for injury to one which broke loose and came in collision with others during a heavy windstorm.</p> <p>cgsaFox other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>CouronATioNS <§=3310(1) — Dowers of directors in settlement of claims.</p> <p>A transfer by order of tbe directors of a corporation of stock in a subsidiary corporation, organized to exploit a patent, to an officer of the company as agreed payment for services in organizing the subsidiary and conducting its business, held within the scope of their authority and valid.</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & lndoxo.</p>

<p>Contempt <§=70 — Inflammatory speech by member of bar.</p> <p>Case considered of a contempt of court committed by a member of its bar in making a public speech, in which he openly imputed corrupt motives to the judge in his actiou in a pending case and advocated impeachment, where he pleaded guilty to the charge and fully retracted and apologized, and held i:o call for severe censure and transmission of record of proceeding to Bar Association.</p> <p><®=For other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Criminal prosecution by the United States against Albert Paul Fricke. On affidavit of bias and prejudice of judge.</p>

<p>In Equity. Suit by the United States Smelting Company against Mendel Hofkin and others,' in which the Picher Lead Company and others "sought to intervene as plaintiffs.</p>

<p>Collision <e=^71(2) — Tiro asb baruks mooriod in slip.</p> <p>Injury to a barge, by being torced against a pier by a collision between other barges lying outside of her and a tug engaged, with others, in maneuvering a large steamship into her slip, held due to the fault of the steamship in being allowed to swing with the tide, so as to crowd the tug against the barges.</p> <p><§xs»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal and error <S=»12O0 — Decree entered on mandate.</p> <p>Motion to strike from a decree a paragraph entered in supposed compliance with the mandate of the Circuit Court of Appeals, and without objection of counsel, denied, subject to further direction of the appellate court.</p> <p>d&»Eor other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Chattel mortgages <©=>192 — Delay in filing.</p> <p>That a chattel mortgage was not filed until 14 days after its execution held not such delay as to invalidate it under the law of New York, under the circumstances shown and in the absence of any evidence to indicate fraud.</p> <p>2. Bankruptcy <©=>196 — Delay in making sale on execution.</p> <p>An execution held not invalid, under Bankruptcy Act July 1, 189S, § 67f (Comp. St. § 9651), for dormancy, as against a trustee in bankruptcy of the debtor, because of delay of four months after levy before .sale, where it was not by direction of plaintiff or his attorney, and no prejudice to the trustee resulted.</p> <p>3. Bankruptcy <©=>216, 217(3) — Execution sale after bankruptcy; stay by BANKRUPTCY COURT.</p> <p>Unless stayed by order of the bankruptcy court, a sale on execution of bankrupt’s property may lawfully be made after adjudication under a valid prior levy.</p> <p><©=aFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Master and servant <S=>301(4) — Liability for acts of servant controlled BY THIRD PERSON.</p> <p>Whether employes are to be deemed pro hac vice servants of a third person, for whom they are performing services, depends upon whether they are under the exclusive control and direction of such third person, and, if not, such third person is not deemed pro hac vice the master, so as to free the employer from liability for the negligence of such employés.</p> <p>2. Railroads <S=p2(>0 — Liability of railroad company permitting use of its tracks by another company.</p> <p>In an action for the death of a freight conductor, who was struck and killed by defendant’s locomotive, operated by its servants over the tracks of another company, etc., held that, under the evidence, the engineer and fireman operating the locomotive could not be deemed servants pro hac vice of the latter company.</p> <p>3. Master and servant <s==>330(1) — -Burden of proving that employé is servant of third person.</p> <p>A general master, who seeks to avoid liability for the negligence of his servants on the ground that they were pro hac vice servants of another, has the burden of establishing the now relation.</p> <p>4. Appeal and error @=»1033(4) — Harmless error in submitting question to jury.</p> <p>Where the evidence would have warranted the trial court in charging that employés of defendant, in charge of an engine proceeding over the tracks of a second company had not become servants pro hac vice of the second company, defendant cannot complain that the question was submitted to the jury, which found against that contention.</p> <p>5. Negligence <3=>130(9) — Inferences from evidence as matter for jury.</p> <p>Where the uncertainty as to the existence or nonexistence of negligence or contributory negligence, or both, whether such uncertainty arises from a conflict in the evidence, or because fair-minded and reasonable men might honestly draw different conclusions from the evidence, if undisputed, the questions are primarily for the jury, and it is permissible for the court to give binding instructions only when the facts are such that all reasonable men must draw the same conclusions therefrom.</p> <p>6. Railroads C^>400(6) — -Track accidents; negligence as to signals, etc., AS JURY QUESTION.</p> <p>In an action for the death of a freight conductor, who was struck by defendant’s locomotive, which was proceeding over tracks of a second, company, the employer of the conductor, while he was standing near the tracks in connection with his duties, the question of the negligence of defendant’s servants in charge of the engine, who gave no effective signals, etc., held for the jury.</p> <p>7. Negligence <5^>70 — Contributory negligence; anticipation of negligence OF OTHERS.</p> <p>One cannot be hold guilty of contributory negligence solely because ho did not anticipate a neglect of duty which others owed him.</p> <p>8. Railroads <s=>400(12) — Contributory negligence in failing to keep LOOKOUT AS JURY QUESTION.</p> <p>In an action for the death of a freight conductor, who was struck by defendant's locomotive which was proceeding over the tracks of a second company, the employer of the conductor, while he was standing near the tracks In the course of Ms duties, though it appeared that he did not keep a lookout in the direction from which defendant’s locomotive came, the question of Ms contributory negligence held for the jury.</p> <p><§3»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Appeal and error <3=^157 — Estoppel to appeal by compliance with decree.</p> <p>Compliance with the judgment or decree of a court by payment or performance is no bar to an appeal or writ of error for its reversal, where repayment or restitution may be enforced, or the effect of the compliance otherwise undone, in case of reversal.</p> <p>2. Courts <3=^359 — Jurisdiction of federal courts in local or transitory ACTION GOVERNED BY STATE LAW.</p> <p>In determining the jurisdiction of a federal court, whether an action is local or transitory is governed by the law of the state.</p> <p>3. Courts <3=»269 — Suit for specific performance a “local action.’’</p> <p>A suit for specific performance of a contract by a corporation to deliver shares of its stock to complainant is not local, within Rem. & Bal. Code Wash. § 204, but transitory, under the law of the state as established by decision.</p> <p><g^>Kur other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Local Action.]</p> <p>4. Usury <©=>37 — Contracts involving contingency.</p> <p>The usury statutes held to have no application to a contract to furnish money for the exploitation of undeveloped mining property, to be repaid only if the venture was successful.</p> <p><g^s>For other cases see same topic & KEY-NUMBER in all Key-Numhered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the Northern Division of the Western District of Washington; Jeremiah Neterer, Judge.</p> <p>Suit by W. F. Flays, substituted for the Sumpter Lumber Company, against the Sound Timber Company. Decree for defendant, and complainant appeals.</p>

Wolverton, Judge. Action by the Northwestern Mutual Life Insurance Company against the Security Savings & Trust Company. Judgment for defendant, and plaintiff brings error. The insurance company brought this action against the Security Savings & Trust Company to recover rent from the trust company. In 1910 one Peterson owned lot 2 in 'block 7 in the city of Portland, and one Mallory owned two lots adjoining in the same block.

<p>1. Aliens <§=>54 — Limitation of proceeding for deportation.</p> <p>The five-year limitation clause of Immigration Act, § 19 (Comp. St. 1918, § 4289%É'), does not apply to the provision for deportation of any alien “who at any time after entry shall be found advocating or teaching the unlawful destruction of property.”</p> <p>2. Aliens <@=>54 — Statute applicable in deportation proceeding.</p> <p>Although a warrant of arrest for deportation is in terms based on a particular statute, the alien may he deported under a later statute, which under the facts charged is applicable.</p> <p>3. Aliens <©=>54 — Warrant fob arrest in proceeding for deportation.</p> <p>A warrant for arrest of an alien for deportation need not have the formality and particularity of an indictment, but is sufficient if it give him adequate information of the acts relied on.</p> <p>4. Habeas corpus <@=>30(3), 97 — Scope of inquiry.</p> <p>The question in habeas corpus is whether the petitioner is lawfully de* tained at the time of the hearing, and, if so, he is not to be discharged for defects in the original warrant or commitment.</p> <p><§=jFov other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>5. Aliens <©=504 — Proceeding fob deportation.</p> <p>A proceeding for deportation of an alien is not unfair because he was not informed of his right to counsel until some evidence had been taken on his preliminary examination before an inspector.</p> <p>6. Aliens <@=>f>4 — Legality of deportation proceeding.</p> <p>That the record returned by the Department of Labor to a writ of habeas corpus obtained by an alien detained for deportation contained irrelevant matter not introduced in the deportation proceeding does not affect the legality of the order of deportation.</p> <p><g£5>For other cases see same topic & KEY-NUMBER, in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Western District of Louisiana; George W. Jack, Judge.</p> <p>Action by J. W. Atkins against L. C. Garrett. Judgment for plaintiff, and defendant brings error.</p>

Bledsoe, Judge. Criminal prosecution by the United States against E. A. Stephens. Judgment of conviction, and defendant brings error. Stephens asks reversal of a conviction for violation of section 3, title 1, of the Act of June 15, 1917 (40 Stat. 219, c. 30 [Comp. St. 1918, § 10212c)) known as the Espionage Act.

<p>Embezzlement <§=>9 — Evidence showing accused in possession ob custody OP PROPERTY OF UNITED STATES.</p> <p>A laborer employed in a mint, whose duty it was, with another, to remove coins from a scale where they had been weighed, into receptacles on trucks, and wheel the trucks into a vault, held intrusted with the possession and control of coins while being so moved, which rendered his appropriation of some of them to his own use while so handling them “embezzlement,” within Penal Code, § 47 (Comp. St. § 10214).</p> <p>[Rd. Note. — For other definitions, see Words and Phrases, First and Second Series, Embezzlement.]</p> <p><gxs»For other cases sec same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Northern District of Texas; Edward R. Meek, Judge.</p> <p>Action by Lena De Boe James against the City Light & Water Company. Judgment for plaintiff, and defendant brings error.</p>

<p>In Error to the District Court of the United States for the Western District of Texas; Duval West, Judge.</p> <p>Criminal prosecution by the United States against R. Eisenberg. Judgment of conviction, and defendant brings error.</p>

<p>1. Mortgages <§=329, 378 — On sale under power title passes by deed.</p> <p>Powers of sale in a mortgage are intended to avoid the delay and expense incident to foreclosure, and are in general favor; hence, if a sale is conducted in accordance with the terms of a valid power, the title, to the premises granted by way of security passes to the purchaser on its consummation by conveyance.</p> <p>2. Courts <s=365 — Decisions op state courts as precedents in federal court.</p> <p>A power of sale should be construed as a part of the contract of mortgage, and not as a hostile process. The Supreme Court of the state where this instrument was executed, agreeably to this principle, held a similar power to be good, and that ruling is followed.</p> <p>3. Mortgages <§=333- — Validity of power of sale.</p> <p>A power of sale in a mortgage, providing for sale at public auction after notice, is not open to attack as inequitable, and a sale in accordance with such power will bar the equity of redemption.</p> <p>4. Mortgages <§=333 — Validity of one of several modes of sale provided disjunctively.</p> <p>Where a mortgage provided several modes of sale in the disjunctive, a sale made under a power which was in no wise inequitable cannot be attacked, because some of the modes prescribed were inequitable.</p> <p>5. Usury <§=309 — Bight to question interest charges after mortgage FORECLOSURE.</p> <p>Where power of sale in a mortgage was valid, and the equity of redemption passed, the mortgagor cannot, more than two years thereafter, question interest charges collected by the mortgagee out of the proceeds of the sale, on the ground of usury.</p> <p><§s»For other cases see same topic & KIíY-NUMBKR in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Eastern District of Oklahoma; Joseph W. Woodrough, Judge.</p> <p>Action by Grover Conrad against Ii. V. Foster and another. There was a judgment for plaintiff, and defendants bring error.</p>

<p>In Equity. Suit by the General Electric Company against the NitroTungsten Ramp Company for infringement of all 13 claims of letters patent No. 1,180,159, issued April 18, 1916, to plaintiff, on application filed on April 19, 1913, by Irving Rangmuir.</p>

In Equity. Suits by the Imperial Machine Company against Frederick Rees and Frederick Stindt, copartners, and others, and against the Metropolitan Fife Insurance Company, for infringement of the Robinson patent, No. 809,582, for a vegetable peeling machine, granted January 9, 1906. On final hearing.

In Admiralty. Libel by William F. Randolph, master and part owner of the schooner T. Morris Perot, on behalf of himself and the other owners of said schooner, and on behalf of himself and other members of the crew, against the American steamer Shawmut, together with a libel by William F. Randolph, late master of the schooner T. Morris Perot, against the American steamer Shawmut and against the own-ers of the schooner T. Morris Perot, together with libel by Stephen Olsen,…

<p>1. Shipping <@=>133 — Lien on vessel for care and transportation; signing OF BILL OF LADING.</p> <p>Notwithstanding charier of vessel provided that captain should sign bills of lading, and they were signed only by the charterer, by receipt of the goods by the vessel she was bound, and lien on her for care and transportation then attached.</p> <p>2. Shipping <@=>133 — Attaching of lien on vessel for care and transportation ; breaking ground for voyage.</p> <p>Attachment of lien on vessel for care and transportation is not deferred till she break ground for the voyage, but accrues with obligation to carry when goods are laden on board.</p> <p>3. Shipping <@=>125 — Injury to cargo during delay in sailing; vessel’s liability.</p> <p>The master of the ship, knowing of the perishable character of dried fruits received on hoard for transportation, and the consequences thereto of failure to sail in a reasonable time, there was a breach of duty for which the boat should respond, no attempt having been made by the owner to notify shipper or to reship the goods, though sailing of ship was delayed two months through dispute between owner and charterer.</p> <p>4. Shipping <@=>132(3) — Injury to cargo during delay in sailing ; proof as to voyage.</p> <p>To establish liability of vessel for deterioration of cargo of perishable goods during unreasonable delay in sailing, it is not necessary for libelant to show that, had she sailed seasonably, the voyage would have been completed in such time and under such conditions as would cause no deterioration.</p> <p><gss>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Bankruptcy. In the matter of the Continental Producing Company, bankrupt. On petition of Simon Goldstein to review order of referee.</p>

In Equity. Suit by the Everett School District No. 24, Snohomish County, Wash., for itself and on behalf of all other school districts in Snohomish county, against D. Carl Pearson, County Treasurer, and Snohomish county. On motion to dismiss bill.

<p>In Equity. Bill by the Singer Sewing Machine Company, a corporation of New Jersey, against Charles C. Cooper, Treasurer of Hamilton County, Ohio. On motion to strike.</p>

In Equity. Suit by Julian Simon ’ and others against George H. Moore, Collector of Internal Revenue, and another. On motion to dismiss bill, and by complainants for temporary injunction.

<p>1. Equity «=114 — Bill by intervenes not supplemental bill.</p> <p>„ A bill filed by an intervener, who asserted rights in the cause of action, is not what is ordinarily known as a “supplemental hill,” nor tested by rules applying to a supplemental bill, though so termed.</p> <p>2. Equity «=364 — Dismissal for absence of necessary parties.</p> <p>It is the general rule in equity that all persons materially interested either legally or beneficially are to be made parties, so there may he a complete ctecree, and a court will ana sponte dismiss a bill, if it appears that to grant the relief prayed for would injuriously affect persons interested in the matter who are not parties.</p> <p>3. Equity «=114 — Right to intervene.</p> <p>A stranger cannot be admitted on his own motion as a .party to a pending suit, without the plaintiff’s consent, unless there is a statute enabling him to do so.</p> <p>4. Courts «=343 — Effect of equity rule relating to intervention.</p> <p>Equity rule 37 of the Supreme Court (198 Fed. xxviii, 115 C. C. A. xxviii), relating to intervention by strangers to suits, has the same effect as a statute.</p> <p>5. Courts «=343 — Requisites of bill by intervener.</p> <p>One intervening in a pending equity suit, pursuant equity rule 37 of the Supreme Court (198 Fed. xxviii, 115 C. C. A. xxviii), should file some formal pleading, besides the petition for intervention, setting forth facts sufficient to entitle intervener to intervene and to the relief prayed for, which pleading must he judged by the rules applicable to pleadings in general.</p> <p>6. Equity «=114 — Essentials of bill of intervention.</p> <p>Pleading by which the intervener seeks to assert rights in a pending suit, which may be properly designated as bill of intervention, should undoubtedly call for an answer from, and be filed against, the complainant, as well as against the defendant, and, if it does not do so, is defective.</p> <p>7. Courts «=343 — Right to intervene under equity rule.</p> <p>While one intervening pursuant to Supreme Court equity rule 37 (198 Fed. xxviii, 115 C. C. A. xxviii) must have some interest in or claim to the demand in suit, or some connection with, interest in, or lien on the subject-matter of the litigation, yet where the intervener had either an equitable assignment to part of the recovery or equitable lien on any recovery in suit, intervention should be allowed.</p> <p>8. Assignments «=52 — Essentials of equitable assignment.</p> <p>A contract between plaintiff and the intervener, which made a present appropriation in favor of intervener of part of the funds to be recovered, and was not a mere promise to pay out of a particular fund, amounts to a valid equitable assignment.</p> <p>9. Liens «=7 — Creation of equitable lien.</p> <p>An agreement whereby the intervener was to share any sums recovered, if considered merely as an agreement to pay, held to create an equitable lien, because indicating an intention on the part of both parties to make the fund recovered security for the obligation to pay the intervener.</p> <p>10. Champerty and maintenance «=1 — What law governs.</p> <p>The English doctrine and statutes regarding champerty and maintenance have never been adopted as the law of New Jersey, and it is by no means clear that they are enforceable in the state of Pennsylvania.</p> <p>^s>For other cases see same topic & KEY-NUMBER in all Key-Numfcered Digests & Indexes</p> <p>11. Equity <§=>114 — Bill of intervention should show where contract WAS MADE.</p> <p>Where complainant entered into contract whereby intervener was to share in recovery, bill of intervention should show where contract was made and was to be performed, for otherwise the common-law doctrine as to champerty and maintenance might apply to defeat rights thereunder.</p> <p>12. Equity <§..*>72(1) — Laches as ground fob refusing intervention.</p> <p>Where complainant, who had contracted that the intervener should share in the recovery, instituted suit within apt time, the intervener’s delay in asserting his rights cannot be denied on the ground of laches, unless defendant by reason of such delay changed his position when he obtained a release from the complainant, etc.</p> <p>13. Courts <§=>343 — Adequate remedy at law no bar to intervention.</p> <p>The right of intervention, given by Supreme Court equity rale 37 (198 Bed. xxviii, 115 G. C. A. xxviii), cannot be denied on the theory that one desiring to intervene had an adequate remedy at law.</p> <p>14. Equity >@=>114 — Essentials of bill of intervention.</p> <p>Where complainant agreed that intervener should share in recovery, the intervener, who sought to become a party notwithstanding complainant liad executed a release, must, as a condition to be allowed to intervene at a late date, set forth in his hill of intervention the release and the facts relied on to avoid it, so that defendant may have that matter disposed of on the pleadings.</p> <p><§=>For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Courts @=»512 — Foreign summons not ordered served where foreign COUNTRY COULD RENDER PERSONAL JUDGMENT.</p> <p>A court of the United States will not order service on an American resident of summons from, a court of a foreign country in compliance with a letter rogatory requesting such service, where under the laws of such country the defendant might be subjected to a personal judgment on his default.</p> <p>^s»Eor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Equity. Suit by the Western Union Telegraph Company against the Louisville & Nashville Railroad Company. On motion to strike out parts of answer.</p>

<p>Admiralty @=>32 — District of suit in personam accompanied by foreign attachment.</p> <p>A court of admiralty held to have jurisdiction of a suit in personam, although both parties resided in an adjoining district, where there was no evidence of want of good iaitk on the part of libelant; his motive being to secure foreign attachment on a vessel then in the jurisdiction of the forum.</p> <p>^s^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Eastern District of Oklahoma, Ralph E. Campbell, Judge.</p> <p>Action by the United States against George E. Bowling and others. Judgment for defendants, and the United States brings error.</p>

<p>In Error to the District Court of the United States for the Eastern District of Oklahoma; Martin J. Wade, Judge.</p> <p>Action by Max Bartman and another, partners under the name of the Gasoline Filling «Station, against the American Refining Company. Judgment for plaintiffs, and defendant brings error.</p>

Morton, Judge. In the matter of the Boston West Africa Trading Company bankrupt. From order of adjudication, made on petition of the Quaker City Morocco Company, the bankrupt appeals.

<p>In Error to the District Court of the United States for the District of Massachusetts; James M. Morton, Judge.</p> <p>Action by Anna E. Hatton, administratrix, against the New York, New Haven & Hartford Railroad Company. Judgment for defendant, and plaintiff brings error.</p>

<p>Petition to Revise Order of the District Court of the United States for the District of North Dakota.</p> <p>Petitibn of John P. Galbraith against John Vallely, trustee in bankruptcy, to revise order of District Court.</p>

Appeals from the District Court of the United States for the District of Massachusetts; James M. Morton, Judge. Suits by George I. Cohen, trustee in bankruptcy, against Lew Goldman and Myer Goldman. Decree for complainant, and defendants separately, appeal.

<p>In Error to the District Court of the United States for the Western,, Division of Texas; Duval West, Judge.</p> <p>Criminal prosecution by the United States against G. W. Bouldin. Judgment of conviction, and defendant brings error.</p>

Morton, Judge. Suit in admiralty by Daniel Murphy and others against the steam trawler Walrus; the Gorton-Pew Vessels Company, claimant. From the decree, libelants appeal.

<p>Appeal from the District Court of the United States for the Southern Division of the Western District of Michigan; C. W. Sessions, Judge.</p> <p>Suit in equity by E. H. Vavra & Co. against the Kalamazoo Carton Company and "others. Decree for defendants, and complainant appeals.</p>

<p>In Admiralty. Suit for collision by the Empire Water Company, Incorporated, owner of the steam lighter Tivingston, against the steam tug Edouard Alfred.</p>

<p>At Law. Action by the City of Toccoa against J. D. Marchbanks. On motion to remand to state court.</p>

<p>1. Constitutional law <§=»54 — Eminent domain <®=>70 — Power to determine JUST COMPENSATION FOR PROPERTY TAKEN NOT LEGISLATIVE.</p> <p>The ultimate determination of the amount of compensation which an owner shall receive for the use of his property, taken from him by the government for the. public benefit, is a judicial function, and Congress aas no power to fix such compensation, nor the rules by which it shall be measured.</p> <p>2. Railroads @^5%, New, vol. 6A Key-No. Series — Inadequate compensation FOR USE UNDER FEDERAL CONTROL.</p> <p>The amount of annual compensation offered by the Director General of Railroads for the use of a railroad then in the hands of a receiver, while under federal control, held inadequate, and the receiver instructed to decline the offer and to proceed under Federal Control Act, § 3 (Comp. St. 1918, § 3115%e), to have the amount of just compensation determined.</p> <p>•«gc^For other cases «ee same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>At Law. Action by Mrs. Lula Walker Sanders, administratrix of the estate of R. W. Walker, deceased, against the Western Union Telegraph Company. On motion to remand to state court.</p>

<p>3. Master and servant <§=»13 — Hours of Service Act; “continuously operated night and day station.”</p> <p>Where telegraphic train dispatch service is maintained by a railroad company at a station continuously during the 24 hours, the fact that during the nighttime the messages are by arrangement handled by operators of another company does not prevent the station from being a “continuously operated night and day station” within Honrs of Service Act, § 2 (Comp. St. | 8678), where operators may not, without violation of the act, be kept on duty more than 9 hours in any 24-hour period.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, Second Series, Continuously Operated.]</p> <p>2. Master and servant <©=^13 — Hours of Service Act liberally construed.</p> <p>The Hours of Service Act (Comp. St. §§ 8677-8680) is highly remedial, and should be liberally construed, and the fact that a penalty is provided for its violation does not change the rule.</p> <p>3. Master and servant <g=^l3 — Intent immaterial in prosecution fob violation of Hours of Service Act.</p> <p>The fact alone of violation of the Hours of Service Act (Comp. St. §§ 8677-8680) subjects the offending company to the prescribed penalty, and an unlawful intent is not necessary.</p> <p><©^For other cases see same topic & KiSY-NUMBlSR in all Key-Numbered Digests & Indexes</p>

At Law. Action by Isaac Wiener, trustee in bankruptcy of the Progressive Circuit, Incorporated, against the Union Trust Company, executor of Frank B. Hibbler, deceased. Verdict for defendant, and plaintiff moves for new trial.

<p>In Equity. Suit by Nellie E. Cowham against Charles H. McNider. On motion by defendant to set aside an order of dismissal.</p>

<p>Shipping <®=>3%, New, vol. 8A Key-No. Series — Emergency fleet corporation SUBJECT TO SUIT.</p> <p>Tbe United. States Skipping Board Emergency Fleet Corporation, incorporated under tbe laws of tbe District of Columbia, held subject to suit in general like other corporations created under such laws.</p> <p><g^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In Bankruptcy. In the matter of Tillie Bernstein, doing business as the Rialto Tire Company, alleged bankrupt. On motion to confirm report of referee, as special master, directing delivery of property to a claimant.

Holmes, Judge. Action by Dr. C. A. Dee, administrator, against the Jackson Light & Traction Company. After judgment for plaintiff, the Merchants’ Bank & Trust Company and others were summoned as garnishees. Thereafter judgment was affirmed on defendants’ writ of error, and, the trial court having denied plaintiff’s motion to enter judgment against the Merchants’ Bank & Trust Company and dismissed the writ of garnishment, plaintiff brings error.

<p>1. Banks and banking <@=>313 — Limitation of actions <@=>87(1) — Time within WHICH STOCKHOLDERS’ DOUBLE LIABILITY MUST BE ENFORCED.</p> <p>Under Code Civ. Proc. N. X. § 394, found in the chapter devoted to limitations, which declares that the chapter does not affect an action against a director or stockholder of a banking association to enforce a liability created by the commonwealth or by statute, but. such action must be brought within three years after the accrual, the double liability imposed on stockholders in trust companies by Banking Law N. X. 1909, § 196, must be enforced by action brought within three years after accrual, the three-year period being a condition, not a limitation, and so section 401 of the Code, excepting from the running of limitations the period where defendant is out of the state, has no application.</p> <p>2. Banks and banking <@=>313 — Time within which stockholder’s double LIABILITY MUST BE ENFORCED.</p> <p>Though Code Civ. Proc. N. X. § 394, requiring actions to enforce the statutory liability of stockholders in banking associations to be brought within throe years, is treated as a statute of limitation against a liability of this kind created by statute of another state, nevertheless it, is a condition on the right to enforce such liability imposed on stockholders in a trust company by Banking Law N. Y. 1909, § 190.</p> <p>i@C5>For other cases see same topic & KEY-NUMB'J3R in all’Key-Numbered Digests & indexes</p> <p>H. Banks and banking <S=>310 — Distinction between “bank” and trust COMPANY.</p> <p>While Banking Law N. Y. § 2, which is devoted to definitions, declares that the term “bank” means any moneyed corporation, and thus would include trust companies, yet in view of the specific provisions applicable to hanks and other equally specific provisions applicable to trust companies, provisions as to banks cannot be extended to cover trust companies by reason of the inclusive definition in section 2.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Bank.J</p> <p>4. Limitation oe actions -®=>58(5) — Accrual to superintendent of banks of right to enforce doubt,e liability of stockholders of trust company.</p> <p>Under Banking Law N. Y. 1909, § 19, relating to superintendent of hanks, and sections 71 and 196, relating to the double liability of stockholders in banks and trust companies, a cause of action to recover the double liability imposed on stockholders in trust companies accrues in favor of the superintendent of hanks, at least in equity, as soon as the necessity to resort to stockholders exists, notwithstanding there has been no assessment, for under section 196 a cause of action accrues against stockholders and to a creditor of a trust company upon default in payment of his claim, etc.</p> <p>5. Limitation of actions i®=^0(9) — Amendment of statute after expiration of limitation.</p> <p>AYhere the three-year period in which the superintendent of hanks might enforce the double liability of stockholders in a trust company, imposed by Banking haw N. Y. 1909, § 196, expired prior to the amendment of April 16, ISM, to section 19, relating to the powers of the superintendent of banks, which thereafter became section 80, such amendment cannot affect the aciion already barred.</p> <p>6. Limitation of actions <S=>6(9) — Extending of period after right of action IS BARRED.</p> <p>After right of action to enforce the double liability of stockholders in trust companies, imposed by Banking Law N. Y. 1909, § 19G, had been lost by the expiration of the three-year period prescribed by Code Civ. Proe. JV. Y. § 394, the extension of the period within which suit might be brought by subsequently enacted amendment of 1914, cannot bo considered retroactive, and to revive the action.</p> <p><§==>For other eases see same topic & KEY-NUMBBR in all Key-Numbered Digests & Indexes</p>

<p>1. Bankruptcy <§=>318(1) — Claim under executory contract by corporation FOR PURCHASE OF ITS OWN STOCK.</p> <p>An executory contract by a corporation for tbe purchase of its own stock cannot be made the basis of a claim against its estate in bankruptcy, thus pe rmitting the selling stockholder to share with ordinary creditors in its assets.</p> <p>On Petition for Rehearing.</p> <p>2. Matter not decided.</p> <p>Tlie record raises no issue and this court intimates no opinion as to the power of the corporation organized under the laws of any state to contract to purchase its own stock, paying therefor only out of surplus or accumulated profits.</p> <p><@^Foi other case» see same topic & KBr-NUiflljm in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Southern District of Mississippi; Edwin R. Holmes, Judge.</p> <p>Suit by the Anderson-Tully Company against the Vicksburg, Shreveport & Pacific Railway Company and others. Judgment for plaintiff, and defendants bring error.</p>

<p>1. War <@=>4 — Aiding prostitution in vicinity of cantonment.</p> <p>Evidence held to sustain a conviction for aiding and abetting prostitution within distance from army cantonment prescribed by Selective Draft Act, S 13, as amended by Act July 9, 1918 (Comp. St. 1918, § 2019b), and regulations made thereunder, by transporting persons and aiding them to find bawdyhouse.</p> <p>2. Disorderly house <@=>4 — What constitutes bawdyhouse.</p> <p>To constitute a house a “bawdyhouse” it is not necessary that it supply the prostitutes, or cater only to the lecherously disposed, but'is sufficient if persons are knowingly permitted to frequent it for the purpose of unlawful intercourse, although such character is not generally known, except to those lasciviously inclined and to panderers.</p> <p>3. Criminal law <@=>369(2) — Evidence op other offense.</p> <p>Where the substance of the offense charged was the taking of persons by defendant to a hotel for purposes of prostitution, evidence that such persons were there served with liquor in their rooms held relevant.</p> <p>4. Disorderly house <@=>2 — “Bawdyhouse”; “brothel”; “house of ill FAME.”</p> <p>In the general popular acceptation of the terms, “bawdyhouse,” “brothel,” and “house of ill fame” are synonymous (citing Words and Phrases, Bawdyhouse; House of 111 Fame).</p> <p><g=»For other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the District of Wyoming; John A. 'Riner, Judge.</p> <p>Action by the United States against Robert D. Murphy and another. Judgment for defendants, and the United States brings error.</p>

Action at law by Frank A. Mette, a minor, by his next friend, Katherine Eudington, against the Missouri Pacific Railroad Company and B. F. Bush, receiver of the Missouri Pacific Railway Company. Judgment for plaintiff, and defendants bring error.

<p>In Error to the District Court of the United States for the Southern Division of the Eastern District of Michigan; Arthur J. Tuttle,. Judge._,__‘__</p> <p>Action by Ralph S. Moore, trustee in bankruptcy of Burt P. White, against Herman M. Wartell. Judgment for plaintiff, and defendant brings error.</p>

Youmans, Judge. Controversy in mortgage foreclosure between the Mississippi Valley Trust Company and the Southern Trust Company as to priority of railroad mortgages. Decree for the Southern Company, and the Mississippi Valley Company appeals.

Suit in admiralty by Edward B. Fitzgibbons, administrator, against the Union Steamboat Company, owner of the steamboat Tioga. Decree for libelant, and respondent appeals. It appears that in July, 1890, an explosion occurred on appellant’s steamboat Tioga while it was lying at the dock in Chicago. Twenty-five of the boat’s crew were killed, including Edward Fitzgibbons, appellee’s intestate.

<p>1. Estoppel <3s=>62(8) — City not estopped by failure to take action on notice of increase of gas bates.</p> <p>A city hold not estopped from maintaining a suit to enjoin the charging of increased rates by a gas company by the fact that it took no action on notice of the intended increase, but waited until the increased rates had been put in force.</p> <p>2. Gas @=»14(2) — Rates ; company operating under two franchises can charge only lowest maximum rates.</p> <p>A gas company, operating under two franchises from a city, one of which it acquired by assignment, held bound to charge no more than the lowest maximum rates provided in either franchise.</p> <p><2^>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Pleading <§=>249(3) — Amendment changing equitable cause to legal PERMISSIBLE.</p> <p>Under Judicial Code, § 274a (Comp. St. § 1251a), a complainant in equity may amend Ms pleadings, although the effect is to make the suit one at law.</p> <p>2. Appeal and error <§=>236(1) — Motion to have cause transferred to law side after amendment necessary TO RÉVIEW.</p> <p>A defendant cannot complain that the court proceeded with a cause in equity after an amendment by complainant which made it an action at law. where no motion was made 1o transfer to the law side, although defendant objected to the amendment.</p> <p>S. Bankruptcy <§=>303(3) — Evidence of insolvency at time of alleged PREFERENCE INSUFFICIENT.</p> <p>Evidence field insufficient to show that at the time of an alleged preferential transfer of property by bankrupts they were insolvent, as defined in section .1 of the Bankruptcy Act (Comp. St. § 9585).</p> <p><g£j>ITo:r other ceses see same topic & KEY-NUMBI3H in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Western District of Texas; Duval West, Judge.</p> <p>Criminal prosecution by the United States against Antonio Cisneros Chapa. Judgment of conviction, and defendant brings error.</p>

<p>Insurance <s=>178 — Insurer not liable in particular average under MARINE POLICY.</p> <p>The lo»s of a concrete mixer, which broke from the deck of a barge, to which it was bolted, when the barge capsized at sea, in which position il was towed 30 miles to port, held not to render the insurer liable m particular average under a clause exempting it from such-liability unless caused by “stranding, sinking, burning, or collision.”</p> <p>^saFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Action by Benjamin McDonald and another against Edward E. Mandeville and others. There was a judgment dismissing the complaint, entered at the close of defendants’ case, and plaintiffs bring error.

Petition to Revise Order of the District Court of the United States for the Southern District of New York. In the matter of Harry Jarmulowsky and Fouls Jarmulowsky, bankrupts. On petition of Julius H. Dukas, trustee, to revise an order made on petition of one Attie.

Suit in equity by the Nestle Patent Holding Company against E. Frederics, Incorporated. Decree for defendant, and complainant appeals. This cause comes here on, appeal from a decree entered in the United States District Court for the Southern District of New York on July 15, 1918. A bill of complaint, was filed by Challes Nessler against the defendant, a corporation organized and existing under the laws of the state oí: New York.

Bill by the Cheatham Electric Switching Device Company against the Transit Development Company and the Nassau Electric Railroad Company. From the final decree, plaintiff appeals, and defendants also appeal. The bill herein was filed July 14, 1911, and this case was before us in 209 Fed. 229, 126 C. C. A. 297, on appeal from an interlocutory decree.

<p>In Admiralty. On petition of the People’s Navigation Company, Incorporated, owner of the steamer Apnie, for limitation of liability.</p>

In Equity. Suit by the American Steel & Wire Company of New Jersey against Harry I,. Davis, individually and as Mayor of the City of Cleveland, Ohio, and Frank W. Smith, individually and as Chief of Police of the City of Cleveland. On motion for preliminary injunction.

<p>1. Removal of causes <@=>12 — Original jurisdiction of particular District Court necessary to removal.</p> <p>To authorize removal of a cause into a particular District Court on tbe ground, of diversity of citizenship, tbe cause must not only be one over which a United States District Court is given original jurisdiction; but, unless plaintiff has expressly or impliedly consented to tbe removal, it must be one over which tbe selected court could have taken original jurisdiction in invitum.</p> <p>2. Removal of causes <@=>16 — Plaintiff does not consent to removal by BRINGING SUIT WHICH MIGHT HAVE BEEN BROUGHT IN FEDERAL COURT.</p> <p>By instituting in a state court a suit of which some United Stares District Court could have taken cognizance, if its jurisdiction bad been invoked in tbe first instance, plaintiff does not impliedly consent to removal of tbe suit at tbe will of defendant.</p> <p>8. Removal of causes <@=49(3) — What constitutes separable controversy.</p> <p>Where tbe owner of property destroyed and an insurer, which has paid •part of the loss and claims the right of subrogation pro tanto, join in an action to recover for the loss on tbe ground of negligence, there is no separable controversy between defendant and tbe insurance company, within tbe meaning of the removal statute.</p> <p>4. Courts <@=>289 — Suit is not one arising under laws of United States</p> <p>WHERE FAILURE TO COMPLY WITH INTERSTATE COMMERCE REGULATION WAS ASSIGNED AS NEGLIGENCE.</p> <p>• That one of tbe grounds of negligence alleged against a carrier in an action for loss of property by an explosion was failure to comply with a regulation of the Interstate Commerce Commission for handling and storing explosives held not to make the action one arising under the laws of the United States, so as to give a federal court exclusive jurisdiction.</p> <p><g^>For other cases see same topic & KEY-NUMBER in ail Key-Numbered Digests & Indexes</p>

<p>1. Vendor and purchaser <@=>246 — Nature of vendor’s lien.</p> <p>A vendor’s lien is a simple equity raised by tbe courts for the benefit of vendors, and it is indispensably necessary to tbe existence of sucb lien that tbe parties should stand in tbe relation toward each other of vendor and vendee of real estate, the purchase price of which has not been fully paid.</p> <p>2. Mortgages <@=>5 — Mortgage distinguished from vendor’s lien.</p> <p>Where a creditor advanced money to the debtor for use in erecting a building on a lot owned by it, taking a deed to the property as security, and afterward reconveyed the same by a deed reserving a lien for his advancements, such lien was not a vendor’s lien, but was in effect a mortgage.</p> <p>3. Mortgages <@=»151(3) — Mechanic’s lien takes precedence over mortgage given after building commenced.</p> <p>Under Page &.A. Supp. Gen. Code Ohio, § 8321, a mechanic’s lien for work done on a building takes precedence of a mortgage given after the building was commenced for a past consideration, although before the contract was made under which the work was done.</p> <p>.«gcsFor otter cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>4. Statutes <@=>226 — Adoption of statute of another state adopts its CONSTRUCTION.</p> <p>Where a Legislature adopts practically verbatim a provision of a statute oí another state, which lias been construed, the presumption is that it intended its own statute to receive the same construction.</p> <p>other case.* see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Equity. Suit by James White and others against James A, Keown. On motion to remand to state court.</p>

<p>Appeal from the District Court of the United States for the Northern District of Texas; Edward R. Meek, Judge.</p> <p>Bill by the National Park Bank of New York against the Reid Cattle Company and the City of Ft. Worth, Tex. From the decree for complainant, the City of Ft. Worth appeals.</p>

Petition to Revise and Appeal from the District Court of the United States for the District of Porto Rico; P. J. Hamilton, Judge. In the matter of Sola e Hijo, S. en C., a partnership, bankrupt; Segundo Cadierno, trustee. On petition by Celestino Sola to revise proceeding of the District Court with appeal by Celestino Sola from a decree of the District Court.

<p>In Error to the District Court of the United States for the District of Nebraska; Martin J. Wade, Judge.</p> <p>Criminal prosecution by the United States against Thomas H. Matters. Judgment of conviction, and defendant brings error.</p>

<p>1. Indians <§=313 — Repeal of statute making allotment to Omaha Indians.</p> <p>The provision of Act Aug. 7, 1882, c. 434, § 8, for making allotments to children of the Omaha Tribe of Indians bom thereafter from the unallotted lands thereby required to be patented in trust to the tribe, held repealed by Act May 11, 1912, c. 121, § 1, providing for the sale of such lauds, with certain reservations, and the division of the proceeds among the children of the tribe.</p> <p>2. Statutes <©=3227 — Officers “authorized” by law to aot may be compelled to perform their duty.</p> <p>A statute which “authorizes” a public officer to do a certain thing imposes upon him a positive and absolute duty to do such act, which may be enforced by those for whose benefit it is to be done, in the absence of words giving him a discretion.</p> <p>fEd. Note. — For other definitions, see Words and Phrases, First and Second Series, Authorize.]</p> <p>8. Indians <§=313 — Statutory right to allotment gives no vested interest.</p> <p>An Indian, given by statute the general right to an allotment from lands of the tribe, acquires no vested interest until the allotment is definitely selected, located, and set apart, and until such time Congress has plenary power to change the mode of disposition of the land.</p> <p>4. Appeal and error <§=31195 (3) — Only question before appellate court is LAW OF THE CASE ON REVERSAL.</p> <p>Only those issues of law which were before the appellate court and by it determined become the law of the case, when upon reversal the cause is retried, and the question of the effect of a statute which was not in issue nor considered is open for consideration upon the second hearing.</p> <p>5. Appeal and error <g=>1097(2) — Erroneous prior decision may bf, set aside on second appeal.</p> <p>An appellate court by its decision does not preclude itself from doing justice between the parties, if on a subsequent appeal it should be convinced that its former decision was erroneous.</p> <p>6. Appeal and error <®=3lO90(3) — Party not estopped to raise question of LAW ON SECOND APPEAL.</p> <p>A party is not estopped from raising a question of law on a second appeal, because it might have been, but was not, raised on the former appeal.</p> <p><§3»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the District of Nebraska; Joseph W. Woodrough, Judge.</p> <p>Suit by Mary Gilpin, a minor, by her next friend, Samuel Gilpin, against the United States. Decree for defendant, and complainant appeals.</p>

<p>Appeal and error <§=>1061(2) — Dismissal of intervening petition not error WHERE ACTION IS DISMISSED ON MERITS.</p> <p>Dismissal of an intervening petition held not error, where the action was subsequently and rightly dismissed on the merits.</p> <p><§cs>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the District of Wyoming; John A. Riner, Judge.</p> <p>Suit in equity by J. W. Mumford, for himself and others in common interest with him, against the Rock Springs Grazing Association. Decree for defendant, and complainant appeals.</p>

<p>1. Army and navy @=>40 — Harboring, concealing, oe assisting deserter.</p> <p>An attorney employed by the father of a soldier 16 years old, who had enlisted without the father’s consent, to obtain his release on the ground of nonage, by advising the soldier, who was then a deserter, to remain away from the authorities until notified, held, not to have “harbored, concealed or assisted” the deserter, within Criminal Code, § 42 (Comp. St. § 10206), which requires, to constitute either of the offenses, some positive physical act, done with knowledge and intent to aid in the wrongful purpose of the deserter.</p> <p>2. Army and navy <S=>40 — Criminal responsibility eoe concealing deSEBXEB»</p> <p>To “conceal,” as used in Criminal Code, § 42 (Comp. St. § 10206), providing for punishment of any one who shall harbor, conceal, protect, or assist any soldier who has deserted from service, means to hide, secrete, or keep out of sight.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Conceal.]</p> <p>8. Army and navy <@=»40 — Criminal responsibility for harboring deserter.</p> <p>To “harbor,” as used in Criminal Code, § 42 (Comp. St. § 10206), providing for punishment of any one who shall harbor, conceal, protect, or assist any soldier who has deserted from service, means to lodge, to care for, after secreting the deserter.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Harbor.]</p> <p>Hough, Circuit Judge, dissenting in part.</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Judgment <@=570(5) — Dismissal foe insufficiency of evidence not bar TO SECOND SUIT.</p> <p>Under Code Civ. Proc. N. Y. § 1209, a judgment dismissing an action for failure of proof is not a bar to a second action.</p> <p>2. Appeal and error <@=930(1) — In review, on dismissal, evidence considered MOST FAVORABLY TO PLAINTIFF.</p> <p>Where a complaint is dismissed on conflicting evidence, the appellate court must consider the case on the evidence most favorable to plaintiff.</p> <p>3. Street railroads <§=98(7) — Pedestrian may cross in front of car where DANGER NOT IMMINENT.</p> <p>If a pedestrian, about to cross the track of a street railroad, sees a car coming at such distance that he has reasonable ground to suppose that he can cross in safety, he is justified in making the attempt; and if the operator of the car sees him, it is his duty to give him a reasonable opportunity to cross.</p> <p><g=For other eases see same topic & KEY-NUMBER in all Key-Numberea Digests & Indexes.</p> <p>4. Street railroads <2=117(22) — Contributory negligence in crossing TRACKS AT STATION A JURY QUESTION.</p> <p>It is not negligence as matter of law for a person to cross a street at a point where there is a trolley station at which cars passing in either direction habitually stop; he having a right to rely upon the fulfillment of the duty resting upon the street railroad company to have its cars under control at this point.</p> <p>5. Street railroads ©=117(21) — Contributory negligence of person killed in crossing tracks a jury question.</p> <p>In an action for the death of a person struck and killed by a street car while crossing the street at a trolley station, evidence held such as to require the question of contributory negligence to be submitted to the jury.</p> <p><g=^>For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Petition to Revise Order of the District Court of the United States for the Southern District of New York. In the matter of Clarence C. Perpall, doing business as Clarence C. Perpall & Co., bankrupt. On petition of Ezra P. Prentice, trustee, to revise an order in favor of the Continental National Bank of New York.

<p>1. Principal and agent <§=>124(3), 174 — Authority to purchase and ratification QUESTIONS FOR JURY.</p> <p>In an action by a broker for commission on a sale of merchandise, whether the agent who made the purchase had authority, or whether, if not, his action was ratified by his principal, both held questions for the jury.</p> <p>2. Brokers <©=>(¡3(1) — Compensation earned although seller refuses to PERFORM.</p> <p>It is sufficient to entitle a broker to his compensation if it appears tnat a sale was effected through his agency in procuring a buyer, and his right is not affected by refusal of the seller to perform the contract made, whether in good or bad faith.</p> <p>3. Trial ¡§=139(1) — Authority to direct verdict.</p> <p>The court may only direct a verdict where the evidence is undisputed, and so plainly preponderant that it practically becomes conclusive, so that reasonable minds could not differ as to the conclusions to be drawn from it.</p> <p>Hough, Circuit Judge, dissenting.</p> <p>other cases see same topic & KBY-NXJMBER in all Key-Numbered Digests & Indexes</p>

Libel by the Steamship Knutsford Company, Limited, against Barber & Co., Incorporated. From a decree for respondent, libelant appeals.

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>Actio'n by Roland R. Batson against Juan Bianchi Rosofa and others. Judgment on a directed verdict for defendants, and plaintiff brings error.</p>

<p>In Error to the District Court of the United States for the Northern District of New York.</p> <p>Action by E. Wells Johnson against the Cadillac Motor Car Company. There was a judgment for defendant, and plaintiff brings error.</p>

' Suit in admiralty by Alfred Testut against the steamship Van der Duyn; the Siberian Steamship Corporation, claimant. Decree for libelant, and claimant appeals.

<p>Account, action on @=^20(2) — Suit foe accounting undeb contbact.</p> <p>Statement by a special master of mutual accounts under a contract between produce dealers for pooling business reviewed.</p> <p>other cases see same topic & KJ3Y-NUMBEÍI in ail Key-Numbered Digests & Indexes</p>

Petition to Revise Order of the District Court of the United States for the Southern District of New York. In the matter of Henry Malkan, bankrupt.. On petition of the Boorum & Pease Company to revise an order vacating the order of adjudication and discharging the receiver.

Petition in admiralty of the Cornell Steamboat Company, as owner of the tug Ice King, for limitation of liability. Decree denying limitation, and petitioner appeals.

Pistrict of New York. Suit in admiralty for collision by the Wright & Cobb Eighterage Company against the steamship Sarnia, the Sarnia Steamship Corporation, claimant, with the tugs Robert Palmer and E. T. Dalzell and their claimants, Richard J. Barrett and Ered B. Dalzell & Co., Incorporated, respectively, impleaded. Decree for libelant against the Sarnia and the Robert Palmer, and their claimants appeal.

Iii Error to the District Court of the United States for the Eastern District of New York. Criminal prosecution by the United States against Albert Evans. Judgment of conviction, and defendant brings error.

<p>In Error to the District Court of the United States for the Northern District of Alabama; William I. Grubb, judge.</p> <p>Action by Ollie Lackey, administratrix, against the Louisville & Nashville Railroad Company. Judgment for defendant, and plaintiff brings error.</p>

Trippet, Judge. Edward Hamm was convicted of obstructing the recruiting and enlistment service of the United States, and brings error.

<p>Appeal from the District Court of the United States for the District of Kansas; John C. Pollock, Judge.</p> <p>Suit by W. L. Cunningham, trustee in bankruptcy, against C. D. French and others. Decree for plaintiff, and defendants appeal.</p>

<p>Criminal law <©=>409 — That defendant who failed to register was within DRAFT AGES NOT ESTABLISHED BY AFFIDAVITS PREVIOUSLY MADE.</p> <p>The willful failure and refusal of defendant to submit himself to registration according to the President’s proclamation and Selective Draft Act May 18, 1917, § 5 (Comp. St. 1918, § 2044e), cannot be established solely by affidavits of defendant as to his age made long before the act went into effect, even though they would undoubtedly be admissible, if there was proof that defendant was in fact of the age which he represented himself to be at the time the affidavits were made.</p> <p><g=Foi other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal and error <@=209 (1) — Finding oe pact by judge not reviewed WHERE NO REQUESTS POR FINDINGS WERE MADE.</p> <p>In' view of Rev. St. §§ 649, TOO, 1011 (Comp. St. §§ 1587, 1668, 1672), where, in an action at law tried to the court by stipulation; no findings were requested the findings made have the effect of the verdict of a jury, and where there are no assignments of error covering rulings made during the trial, or the sufficiency of the special findings to support the judgment, there is nothing which the appellate court may review.</p> <p>or other cases see same topic & KEY-NUMBER iu all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Western District of Tennessee; John E. McCall, Judge.</p> <p>Criminal prosecution by the United States against Fritz Sodmi. Judgment of conviction, and defendant brings error.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Suit by the United States Dight & Heat Corporation against the Safety Car Heating & Fighting Company. From a decree for defendant, plaintiff appeals.</p>

<p>1. Discovery @=>8 — Matters as to which discovery may be obtained STATED.</p> <p>Equity grants discovery in aid of a plaintiff’s right or cause of action, or in aid of a defendant’s defense, as defined by the issues in the case, but not in relation to the amount of damages recoverable, which is not an issue, but a consequence of the issues.</p> <p>2. Patents <S=»292 — Discovery as to sales and profits not permitted in ACTION FOR INFRINGEMENT.</p> <p>Plaintiff, in an action at law for infringement of a patent, cannot maintain a bill of discovery to require defendant to disclose the number of sales made of the alleged infringing article, and its profits thereon, in advance of trial.</p> <p><@^z>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Petition for Leave to Apply to the District Court of the United States for Permission to File a Supplemental Bill in the Nature of a Bill of Review. Suit by the National Metal Molding Company against the Tubular Woven Fabric Company. A decree for defendant was reversed (227 Fed. 884, 142 C. C. A. 408), and the defendant files an original petition for leave to apply to the District Court, for permission to file a supplemental bill in the nature of a bill of review.

<p>Collision <@=»39 — Liability of steamship fob disobedience of passing bules.</p> <p>A collision at sea, on a moonless, but clear, niglit, between two steamships navigating without lights and approaching nearly end on, held due solely to the iault of one in failing to sooner see the other, at least as soon as she flashed on her lights whfen' half a mile distant, and to alter her course to starboard as required by international rule 18, and as was done by the other vessel.</p> <p><©=>Eor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In Admiralty. Suit by Wesley Smalls against the Atlantic Coast Shipping Company. On exceptions to libel; Libel to recover for personal injuries to the libeiant, a longshoreman, received on the land, while assisting in unloading steel rails from a steamship lying at a pier, into railroad cars, by means of an alleged defective steam winch of the vessel.

<p>1. Principal and surety <@=59 — Intention of parties governs contract.</p> <p>In determining the rights of a snrety under an application for a surety bond, the intention of the parties must govern.</p> <p>2. Insurance <@=59 — Contract most strongly construed against surety COMPANY PREPARING IT.</p> <p>In case of ambiguity in an application on which surety company issued a bond, the application is to be most strongly construed against the surety company, which drew the same.</p> <p>3. Contracts <@=156 — Special terms control general terms.</p> <p>Tt is the ordinary rule in construction of contracts and written instruments that special terms will control general terms.</p> <p>4. Principal and surety <@=175 — Surety company cannot apply collateral received under application for one bond to other liabilities.</p> <p>Where an application for a bond signed by a public contractor contained an agreement to indemnify the surety company against loss of every nature, not only by virtue of the bond applied for, hut by reason of the surety company’s execution of other bonds, and for better protection required the contractor to assign all interest in tools on the work and the money to bo due on the contract, etc., but provided, in event the surety should be released from liability on account of the bond, the assignment should become null and void, held, that the surety could not, under the general provisions above and other similar ones following, apply the collateral to claims independent of the particular bond issued.</p> <p><§=z3For other casos see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Suit by W. S. Overton and another, on behalf of themselves and other minority stockholders, against the Presidio Mining Company and others. Decree for complainants, and defendants appeal. The parties will be designated as in the court below. This is an action brought in the lower court by W. S. Overton and Oarl A. Martin, on behalf of themselves and other minority stockholders of the Presidio Mining Company, against the Presidio Mining Company and Wm.

<p>1. Abatement and revival <§=>12 — Action <§=>69 — Stay ; other action pending IN state court.</p> <p>Action in federal court, of which it has jurisdiction by reason of diversity of citizenship and amount involved, need not be stayed or dismissed because of pendency in the state court of action concerning the same matter.</p> <p>2. Courts <§=>312(8) — Federal courts; conveyance to give jurisdiction.</p> <p>Right to maintain suit in the federal court is not affected by the fact that property was conveyed to plaintiff to give the parties necessary diversity of citizenship; the conveyance being without reservation of right.</p> <p>3. Waters and water courses <@=>188(3) — Waterworks franchise in perpetuity.</p> <p>Grant by a city to individuals, their successors and assigns, of franchise for waterworks is in perpetuity, in the absence of limitations, though accompanying contract for furnishing the city water for Are hydrants is for only 20 years, with provision for renewal, on terms to be agreed on if city' does not exercise option to buy.</p> <p>4. Waters and water courses <§=>188(4) — Franchise; proceeding for forfeiture.</p> <p>Though there be annexed to a waterworks franchise a tacit condition that it may be lost by misuser or nonuser, there must be a proceeding for forfeiture by the state, or by the city on authority given by the state; a resolution declaring such forfeiture being insufficient. •</p> <p>5. Judgment <§=>736 — Res judicata; matters involved.</p> <p>Relative to question of res judicata, the question of perpetuity of a waterworks franchise held, in suit to quiet title to the franchise, not involved or determined in prior suit for specific performance of contract accompanying franchise for renewal at end of 20 years of contract for furnishing water to city: it having been merely held that it was a contract incapable of specific performance,</p> <p><§=»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>ft. Waters and water courses @=>188(4) — Waterworks franchise; construction OF DECREE QUIETING TITLE.</p> <p>Decree in suit to quiet title to waterworks franchise, that it is perpetual, does not mean that it is not subject to the tacit conditions of the grant, that it may be lost and forfeited by appropriate remedy for misuser or nonuser.</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Courts @=5344 — Service of process in other district confers no jurisdiction.</p> <p>.a. federal court does not acquire jurisdiction of the defendant in a personal action by service of summons in another district</p> <p>2. Corporations <@=^668(1)- — Service of process on foreign corporation INEFFECTIVE.</p> <p>Service of summons on s foreign corporation in a state where it is not shown to be doing business or to have property, and in which it has not appointed an agent under the state law on whom service may be made, is ineffective.</p> <p>3. Appearance <@=^9(1) — Special appearance not waiver of objection to JURISDICTION OF PERSON.</p> <p>A special appearance, for the purpose of moving to quash the service and to dismiss for want of jurisdiction over defendant, although there was a provision in the order to show cause for an extension of time to appear, demur, or answer, held not a general appearance, which waived objection to the jurisdiction.</p> <p><@£5>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Action by Harve M. Wheeler against Charles P. Taft, in which H. W. Inscore filed an intervening petition. There was a judgment for plaintiff for part only of the relief sought, and plaintiff appeals and brings error.

Johnson, Judge. Suit for partition by Tully Hickson and others against J. A. Davenport and others. Decree for complainants, and defendants appeal.

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>Action by Alec Erickson against the John A. Roebling’s Sons Company of New York. Judgment for plaintiff, and defendant brings error.</p>

Action by Mary Petkunas against the Dry Dock, East Broadway & Battery Railroad Company. From an order setting aside a verdict for plaintiff and granting a new trial, defendant brings error.

Bill by James N. Hyman against the Trow Directory Printing & Bookbinding Company, upon which receiver was appointed. From a judgment denying the petition of the A. Erdmann Company, Incorporated, for preferred claim, petitioner appeals.

<p>Shipping <3=22 — Broker has eight to commission where purchasers faked TO OBTAIN PERMISSION TO PURCHASE UNDER BRITISH DEFENSE OF THE REALM Act.</p> <p>A broker, who, as authorized, procured purchasers, who entered into a satisfactory contract for purchase of a British steamship, which contract his principal afterward refused to perform, held not deprived of Ms right to the agreed commission because the purchasers had not obtained permission to purchase, as required by a British Defense of the Realm regulation which made its violation an offense, but did not invalidate the sale, and where the contract was repudiated on different grounds.</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Libel by James M. Creighton against the steam tug Bern, her engines, etc., claimed by the Philadelphia & Reading Railway Company. Decree for libelant, and claimant appeals.</p>

Dickinson, Judge. Suit by the Davey Tree Expert Company and others against Rue J. Van Billiard and another. From a decree for complainants on condition (248 Fed. 718), complainants appeal.

<p>Criminal law @=»1072 — Writ of error allowed to review conviction WHERE STATUTE PROVIDES NO PENALTY.</p> <p>Where, on an indictment charging violation of I’ood Conservation Act Aug. 10, 1917, § 4 (Comp. St. 1918, § 3115%1'f), in exacting an excessive price for sugar, defendant at the June term pleaded guilty, and did not at that term or at the succeeding October term move to set aside or quash the indictment, or set aside or vacate the conviction, hold that, as the act prescribes no penalty for exaction of unreasonable prices, and as there is no general federal statute fixing a penalty where none is provided in the statute declaring acts unlawful, defendant’s application for a writ of error, made at the December term, will be granted, in view of the doubt of the District Court’s jurisdiction, despite Judicial Code, § 24, to assess punishment.</p> <p><§s»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexr*</p>

<p>Appeal from the Supreme Court of the District of Columbia.</p> <p>Divorce action by Ida W. Early against Claude C. Early. Decree for plaintiff, and defendant appeals.</p>

<p>Appeal from the Supreme Court of the District of Columbia.</p> <p>Action by Margaret R. Marsh against William J. Purman. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from the Supreme Court" of the District of Columbia.</p> <p>Habeas corpus proceeding by George Cooper Hill against Edward H. Halback and Etta Tanksley Halback. Judgment for petitioner, and respondents appeal.</p>

<p>Appeal from a Decision by the Commissioner of Patents.</p> <p>Application by the American Feed Milling Company to register a trade-mark, opposed by the M. C. Peters Mill Company. From a decision of the Commissioner of Patents, denying registration, the applicant appeals.</p>

<p>Appeal from a Decision by the Commissioner of Patents.</p> <p>Application by the Alvah Bushnell Company to register a trade-mark. From a decision of the Commissioner of Patents, refusing registration, the applicant appeals.</p>

Decision by the Commissioner of Patents. Petition by E. Otzen & Co. to cancel a trade-mark registration, opposed by the J. K. Armsby Company. From a decision of the Commissioner of Patents denying the petition, the petitioner appeals.

<p>Patents ®^113(2) — Order dissolving interference proceeding not appeal-able.</p> <p>A Patent Office decision, dissolving an interference proceeding on the ground that the junior party’s claims were not patentable, because barred by previous public use, and not passing upon the question of priority, is not appealable, because not a final order.</p> <p><@ss>For other cases see same topic & KEY-NUMBER in all Key-Numherfid Digests & Indexes</p>

<p>Appeal from a Decision by an Assistant Commissioner of Patents.</p> <p>Interference proceeding in tthe Patent Office between Gustav A. Bader and Emor Ridley Burroughs. From a decision by an Assistant Commissioner of Patents awarding priority to Burroughs, Bader appeals.</p>

Action by Thomas O. Midgett against Louis Mandes and another. Judgment for plaintiff against defendant Mandes, the action having abated as to defendant Suraci on account of his death, and defendant Mandes appeals.

<p>Executors and administrators <S=»216(2) — Estate t,i abijo for fees of attorneys EMimOYED BY COLLECTOR.</p> <p>Under Code of Law, §§ 308, 807, authorizing the collector of an estate to bring certain suits, and section 308, providing that, collect or shall not be liable in actions by creditors of deceased, attorneys rendering services to the estate at the collector’s request may collect (heir fees from the estate in an tuition at law against the collector in his representative capacity.</p> <p><5£»For other casey see same topic & KEY-NUMBER in all Key-Nunibered Digests & Indexes</p>

<p>On application of appellees W. S. Overton and Carl A. Martin for diminution of record.</p>