Volume 263 — Federal Reporter

<p>1. Indictment and information <§=>91(1) — No necessity of charging willfulness UNLESS AN ELEMENT OF OFFENSE.</p> <p>It is the general rule that it is not necessary to charge that the offense was committed willfully, unless the statute defining the same maltes willfulness an element thereof.</p> <p>2. Indictment and information <§=»91(3) — '“Feloniously” and “unlawfully” EQUIVALENT TO “WILLFULLY.”</p> <p>Words which import an exercise of the will, such as “feloniously” and “unlawfully,” will supply the place of the word “willfully” in an indictment.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Feloniously; Unlawfully; Willful.]</p> <p>3. Indictment and information <§=>9.1(3) — Not necessary to use word “willful.”</p> <p>Where the facts alleged necessarily import willfulness, the failure to use the word is not fatal to the indictment.</p> <p>4. Army and navy <@=540 — What constitutes attempting to incite disloyalty in s ‘military service” stated.</p> <p>To constitute the offense of attempting to incite disloyalty and refusal of duty in the military service, within Espionage Act, tit. 1, § 3 (Comp. St. 1818, Comp. St. Ann. Supp. 1919, § 10212c), it is not necessary that the persons against whom defendants’ activities were directed should have been mustered into the military service, but it is sufficient if ihev were within the provisions of the Conscription Act (Comp'. St. 1918, Comp. St. Ann. Supp. 1919, §§ 2044a-2044k), or were or might be subject to military service.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Military Service.]</p> <p>5. Conspiracy @=>43 (5) — Unnecessary to allege how overt acts would affect OBJECT OF CONSPIRACY.</p> <p>In an indictment for conspiracy, it is not necessary to allege the manner in which the overt acts charged would tend to effect the object of the conspiracy; the purpose of such allegations being to show that something was done with intent to carry the conspiracy into effect.</p> <p>6. Army and navy @=>40 — Other seditious statements admissible to show INTENT.</p> <p>In a prosecution for attempt to incite disloyalty and refusal of duty in the military service, evidence of statements made by defendant before the entrance of the United States into the war held admissible as tending to show the then state of mind and feeling of defendant.</p> <p>7. Criminal law @=>429(1) — Official record of draft examination admissible IN PROSECUTION FOR INCITING REFUSAL OF MILITARY DUTY.</p> <p>The official record of examinations of a draftee, as showing prima facie the grounds on which he was rejected, held admissible on a trial for attempting to incite refusal of duty in the military service by so treating the eyes of said draftee and others as to cause defective 'vision and consequent rejection.</p> <p>8. Criminal law @=>413 (1) — Defendants’ loyal statements inadmissible in PROSECUTION FOR INCITING DISLOYALTY.</p> <p>In a prosecution for attempting to incite disloyalty and refusal of duty in the military service, evidence, of the expression of loyal sentiments by defendants held properly excluded.</p>

Petition to Revise Order of the District Court of the United States for the Southern District of New York. In the matter of Louis H. Amy and Ernest J. H. Amy, individually and as copartners doing business as H. Amy & Co., bankrupts.

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>Criminal prosecution by the United States against Saleen Samara, Amen Samara, and Saleen Baloutin. Judgment of conviction, and the defendants bring error.</p>

<p>In Error to the District Court of the United States for the Western Division of the Northern District of Ohio; John M. Killits, Judge.</p> <p>John White was convicted of an offense, and he brings error.</p>

Tn Error to the District Court of the United States for the Southern District of Florida; Rhydon M. Call, Judge. Action by the Commercial Credit Company against the Sponge Exchange Bank of Tarpon Springs. Judgment for plaintiff, and defendant brings error.

<p>In Error to the District Court of the United States for the District of Oregon; Charles E. Wolverton, Judge.</p> <p>Criminal prosecution by the United States against Henry Albers. Judgment of conviction, and defendant brings error.</p>

<p>1. Death <®==>14(1) — Recoveby fob negligent death of seamen authobized.</p> <p>Where the owner of a small harbor tug, unseaworthy for ocean navigation, and whose master had only a coastwise license, procured a license for her to proceed to a Mexican port in tow, without use of her own power, or necessity of a crew, but kept master and crew on board, with orders to keep up steam, both such owner and the towing company held liable for death of 3nastor and crew, who were drowned when the tug capsized in a storm, where they -were given no orders to cut loose, and were not taken off, although there was ample time before the gale struck.</p> <p>2. Towage <S^>4 — Tug besponsible fob movement of tow.</p> <p>When tug and tow proceed on a voyage, the master of the tug controls and dominates, and there can be no divided responsibility.</p>

<p>Appeal from the District Court of the United States for the Northern District of Florida; William B. Sheppard, Judge.</p> <p>Suit by George Bruce against E. E. Bruce and others. From a decree dismissing the bill, plaintiff appeals.</p>

<p>Master and servant <2=^185 (12) — Mine operator not liable for injury to EMPLOYÉ BY COEMPLOYE’S ACT OUTSIDE SCOPE OF EMPLOYMENT.</p> <p>A mining company held not chargeable with negligence which rendered it liable for injury to a miner, caused by a car running down a tunnel without control at such speed that it jumped the track, where employes under instructions had loaded the car and left it standing on a level place with the wheels blocked, from which place it was started by another employé, having no duty in respect to it and without instructions, and through his mistake was sent down the wrong track.</p>

<p>•Towage <@=»7 — Evidence establishing contract eor extortionate rate.</p> <p>Decree affirmed, holding exorbitant and not enforceable an agreement by the master of a Norwegian barque, who had never before been to the port, and spoke and understood English imperfectly, to pay $1,900 for tow-age from Lynnhaven Roads, inside the capes, to Baltimore, made on false representations by the tug master that it was the customary rate.</p>

<p>Í. United States <§=>73 — In action for breach of contract for building LEVEE, THAT GOVERNMENT INTERFERED WITH WORK A VALID DEFENSE.</p> <p>In an action by tbe United States against a contractor for building a Mississippi levee for failure to complete tbe contract, an answer Held to state a defense which alleged that during an unprecedented flood, when the levee was in part completed, plaintiff took possession'of it to the exclusion of defendant, and by attempting to close a gap therein for temporary protection of lands behind caused the completed part to be washed away, when, if left in possession, defendant would, by protecting the ends and leaving the gap open, have saved it, and that plaintiff afterwards required defendant to rebuild the part destroyed at his own expense as a condition of resuming work.</p> <p>2. United States <§=>70 (1) — Levee building contract requirement that contractor make all repairs before acceptance not applicable to PART DESTROYED BY GOVERNMENT OFTTCER’S ACTS.</p> <p>Provisions of a government contract for building a levee that damage or injury to any part of the work before acceptance should be repaired by the contractor at his expense Held not to require him to rebuild at his expense parts destroyed by flood and caused by acts of the government officer, who had, without warrant in the contract, taken temporary possession and excluded the contractor.</p>

<p>In Error to the District Court of the United States for the Western District of Tennessee; John E. McCall, Judge.</p> <p>W. L. McCool and another were convicted of offenses, and they bring error.</p>

<p>1. Sales <@=>277 — Contract of warranty construed against tarty PREPARING.</p> <p>Where the warranty on a sale of goods was contained in the order and a letter, both of which were prepared by the buyer, any doubt as to the construction will be resolved against the buyer.</p> <p>2. Sales <@=>284(1) — Warranty of quality must be substantially complied with.</p> <p>There must be a substantial compliance with a warranty of quality on a sale of goods, and a substantial failure is a breach.</p> <p>3. Sales <@=>445(4) — Breach of warranty on controverted facts is question FOR JURY.</p> <p>When the question of substantial failure or compliance with a warranty of quality depends on controverted and material facts, such facts are for the jury.</p> <p>4. Sales @=»445(4) — Breach of warranty a question fob jury.</p> <p>Whether hair-line cracks on the surface of steel ingots constituted breach of a warranty that they would be free from serious surface defects was a question for the jury, and a motion for a directed verdict was properly denied, though the existence of such hair-line cracks was admitted.</p> <p>5. Appeal and error <g=»1003 — Court cannot reverse on weight of evidence.</p> <p>A United States appellate court has no power in actions at law to reverse, because the verdict is against the weight of the evidence.</p>

Warren Davis, Judge. In the matter of the bankruptcy of Samuel N. Lamb. From an order sustaining the report of the referee, dismissing objections to the bankrupt’s discharge, the objecting creditor, Vinton N. Thompson, appeals.

Call, Judge. Bankruptcy proceeding against J. C. Rib by, for whom G. S. Beverly was appointed trustee in bankruptcy. From an order (253 Fed. 278) denying a petition for review of an order of the referee, disallowing in part his exemptions, the bankrupt appeals.

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>Criminal prosecution by the "United States against Thomas Pennacchio. 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>Dibel by William Stevens against the Maritime Warehouse Company, Incorporated. From a decree dismissing the libel, libelant appeals.</p>

Dickinson, Judge. Action at law by the Sponge Divers’ Association, Incorporated, to the use of the Commercial Credit Company, against the Smith, Kline & French Company. Judgment for defendant, and plaintiff brings error. Affirmed.

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>Action by George C. Holt and Benjamin B. Odell, receivers of the iEtna Explosives Company, against the Wabash Railway Company. •Judgment for plaintiffs, and defendant brings error.</p>

<p>Bankruptcy <§=>212 — Bailor, reclaiming property prom trustee, required TO REPAY AMOUNTS PAID BY BAILEE.</p> <p>Where the bailor of a printing press, which, it was contemplated, would be ultimately purchased by the bailee, shipped it on a bill of lading, requiring the bailee to pay $1,000 and the freight before it could obtain possession, and failed to include parts necessary to make a completely workable press, it would not be permitted to reclaim the press from the bailee’s trustee in bankruptcy without repaying the amounts paid by the bailee.</p>

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>Action by the Penn Worsted Company against Edward B. Sudbury. Judgment for plaintiff, and defendant brings error.</p>

<p>Towage <§=»12(1) — Ttjg held not liable foe in juey to tow.</p> <p>_ Tugs towing a derrick having an A-frame extending upward held not liable for damage caused by the frame striking a bridge, where before passing under the bridge, in response to a question by the master of the leading tug, the master of the derrick stated the height of the frame, and if the statement had been correct there would have been a clearance of 2y2 feet</p>

<p>In Error to the District Court of the United States for the Southern Division of the Northern District of Alabama; William I. Grubb, Judge.</p> <p>Arnold Jacob Uhl was convicted of violation of Act May 18, 1917, with reference to answers to questionnaire by persons claiming exemption from military service.</p>

<p>Appeal from the District Court of the United States for the District of Massachusetts; James M. Morton, Jr., Judge.</p> <p>Suit in equity by George I. Cohen, trustee in bankruptcy of Israel Sternberg, against the Tremont Trust Company. Decree for complainant and defendant appeals.</p>

Action by the Victor Talking Machine Company against the Starr Piano Company, for infringement of letters patent No. 896,059. On an application for a preliminary injunction, the motion was denied. Plaintiff appeals.

<p>Patents ®=^328 — Foe process of burning crude petroleum not infringed..</p> <p>The Stafford patent, No. 860,418, for a process of effecting combustion of crude petroleum, consisting in the continuing discharge into a confined area of liquid oil, at a distance from the point of combustion, of an oxygenous fluid under pressure sufficient to effect substantially perfect combustion, held not infringed, in that defendant’s process did not differ from those disclosed by patents prior to plaintiff’s patent.</p>

<p>Appeal from the District Court of the United States for the Western District of Pennsylvania; Charles P. Orr, Judge.</p> <p>Suit in equity by John F. Courson against the Westinghouse Air Brake Company. Decree for defendant, and complainant appeals.</p>

<p>1. Patents <5=328 — Patent fob reinforcing bar limited and not infringed. ,</p> <p>Claim 8 of the Vandenburgh reissue patent, No. 14,182, for a reinforcing bar for use in concrete work, held limited by the prior art to a bar with kerfs or cuts, in which the attached coil is placed and a tongue or spur, overlapping the kerf and holding the coil in place; and, as so limited, not infringed.</p> <p>2. Patents <5=828 — Reissue patent foe reinforcing bab held invalid as NOT WARRANTED BY ORIGINAL PATENT.</p> <p>Claims 1 and 2 of the Vandenburgh reissue patent, No. 14,182, for reinforcing bars for use in concrete work, held invalid, as not warranted by the original patent.</p>

<p>Appeal and error @=>87(%), 882(3) — Assignment in infringement suit HELD NOT TO HAVE BROUGHT UP FOR REVIEW RULING ON MACHINES NOT CONSIDERED BY'tRIAL COURT.</p> <p>Assignment by defendant tbat court erred in not holding that his_ machines did not infringe did not present for review the question of infringement by a machine which plaintff unsuccessfully sought to bring in after interlocutory decree, since refusal to consider that machine was a matter of discretion, not appealable, and was based on defendant’s objection.</p>

<p>1. Courts <@=>96(1) — District Court decisions as to priority op licenses OVER SUBSEQUENT ASSIGNMENT OF PATENT FOLLOWED.</p> <p>Tlie rule that a license from a patentee prevails over a subsequent assignment is so well established by decisions of the District Courts that, although not confirmed by any appellate court, it will be followed by a District Court until changed by an appellate court.</p> <p>2. Patents <@=>183 — Inventor may assign rights prior to patent.</p> <p>An inventor has property which he may assign prior to patent, at least when an application is pending and the patent is specifically described.</p> <p>3. Patents <@=>211(2) — Agreement with -plaintive for exclusive license HELD TERMINATED PRIOR TO ASSIGNMENT UNDER WHICH DEFENDANT CLAIMED.</p> <p>Facts held to show that an agreement between plaintiff and an inventor, providing for a probationary period during which the invention was to bo tested, after which plaintiff could elect to take an exclusive license for two years, had terminated prior to the assignment by the inventor under wbicb defendant claimed.</p> <p>4. Patents <@=>212(2) — Agreement to convey applications and patent is VALID AND SUPERIOR TO SUBSEQUENT AGREEMENT TO GIVE LICENSE.</p> <p>An agreement to convey applications for a patent on an invention and the consequent patent is valid in equity, and takes precedence over a sud-sequent agreement to give an exclusive license, though it does not purport to make a present conveyance of the applications, and no applications have in fact been filed.</p> <p>On Rehearing on Cross-Bill for Patent Infringement.</p> <p>5. Patents <@=>328 — Patent for printing press not invalid for inopera- • BILITY.</p> <p>The Stonemetz patent, No. 1,188,507, for a printing press, held not invalid for inoperability.</p> <p>6. Patents <@=>312(1) — Presumption of operability must bh overcome by INFRINGER.</p> <p>On cross-bill for infringement of a patent, plaintiff in original bill lias the burden of overcoming the presumption of operability.</p> <p>7. Patents <@=>47 — Inoperability of disalloweb claims does not defeat patent, where known elements may be substituted so as to render machine operable.-</p> <p>Where the claims on which a patent was granted wore operable, but disallowed claims were inoperable, and not mechanically separable, and rendered the whole machine inoperable as disclosed, but known elements were available, which could be substituted by a skilled artisan for the disallowed elements, so as to make the machine operable, the patent is valid.</p> <p>8. Patents <@=>312(1) — Infringer must show nonexistence of elements which may be substituted for disallowed inoperable elements.</p> <p>An infringer, seeking to show that the disclosure is inoperable because of unpatented elements must show that there were no known elements which it was within the competence of a skilled artisan to- substitute, so as to produce an operable machine in combination with the patented elements.</p>

<p>1. Patents <S=»7 — “Process” define».</p> <p>In patent matters, a “process” is not a machine, thing, or result, but the mode or method employed in producing the result.</p> <p>[Ed. Note.- — For other definitions, see Words and Phrases, First and Second Series, Process.]</p> <p>2. Patents <S=»167(2) — Words “substantially as described” refer to specifications.</p> <p>In a patent claim, the words “substantially as described” mean as described in the specifications.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Substantially as Described.]</p> <p>3. Patents <§=»328 — Process invention for bating hides invalid.</p> <p>The Rohm patent, No. 886,411, for a process for bating hides, held invalid, because not disclosing any method of using the bate, other than generally employed in the prior art.</p> <p>4. Patents <®=337 — Substitution of bates in well-known process not PATENTABLE.</p> <p>There is no patentable novelty in the substitution of one bate, even , though superior, for another, in a well-known process.</p>

<p>1. Aliens @=>54 — Constitutional law @=>311 — Searches and seizures @=>T —Deportation proceeding, based on evidence obtained by raiding orderly meetings, is unfair and denial of due process.</p> <p>A proceeding to deport an alien, on the ground that he was found advocating or teaching the unlawful destruction of property, is unfair and invalid, in view of the search and seizure and due process clauses of the Constitution, when based upon pamphlets obtained by forcibly raiding orderly meetings of the union to which he belonged, without warrant or process.</p> <p>2. Aliens @=>54 — Mode of procurement of evidence by unlawful raid may BE RAISED ON HABEAS CORPUS.</p> <p>Where the' evidence on which a deportation proceeding was based was obtained by unlawful raids, without warrant or process, of the hall and orderly- meetings of a union, and the government freely disclosed the manner of obtaining the evidence in both the deportation proceeding and a proceeding for habeas corpus, the situation was not one wherein the mode of procuring the evidence could not be collaterally raised and determined at the trial.</p> <p>3. Constitutional law <3=»%, New, vol. 4 Key-No. Series — Violation of RIGHTS OF PERSONAL SECURITY AND DUE PROCESS NOT WARRANTED IN WAR OR PEACE.</p> <p>No emergency in war or peace warrants the violation of the rights of personal security and safety, and orderly and due process of law.</p> <p>4. Habeas corpus <3=90 — On review of deportation proceedings objections MAY BE MADE IN BRIEF, AND ABSENCE OF OBJECTIONS WILL NOT PREVENT RELIEF WHEN PROCEEDING GREATLY INFRINGES RIGHTS.</p> <p>On habeas corpus to review deportation proceedings, where the alien’s objections have been excluded from the record, they may he made in the briefs, and unfairness in the proceedings, greatly infringing the alien’s rights, will he noticed, whether or not objections have been made with technical precision.</p> <p>5. Aliens -<3=54 — Constitutional law <3=314 — Refusal to produce government’s WITNESS FOE CROSS-EXAMINATION DENIED DUE PROCESS AND RENDERED PROCEEDINGS UNFAIR.</p> <p>The refusal to produce one of the government’s material witnesses for cross-examination in a deportation proceeding, unless the alien would disclose what he expected to prove and deposit the costs, denied due process of law, and rendered the proceedings unfair, though the government had another witness to the same matter.</p>

<p>In Equity. Suit by Thomas H. Brougham against Kansas City, Mo., and another. On final hearing.</p>

At Law. _ Action by the United States against Peter J. Kendall. On rule by Julius D. Tchopik on the clerk of the District Court to show cause why judgments in favor of the United States against Kendall should not be declared inoperative.

<p>Criminal prosecution by the United States against Charles W. Steene, Frank I,. Preston, and William Hotze. On demurrer to indictment.</p>

<p>In Equity. Suit by the A. M. Holter Hardware Company and others against Daniel Boyle and others.</p>

<p>1. Bankruptcy <@=3386 — Insufficiency of petition to vacate composition.</p> <p>Petition of a creditor, filed 13 months after offer of a composition, and nearly 6 months after its confirmation without opposition, and after considerable dividends had been paid to creditors, based on information alleged to have been since obtained by petitioner, but which states only conclusions, and no material specific facts, and is verified only on information and belief, held insufficient to warrant vacation of the composition.</p> <p>2. Bankruptcy <@=>386 — Representations of value of assets by receiver NOT BINDING ON BANKRUPT OR ESTATE.</p> <p>■ As respects alleged fraud by bankrupt bank.in procuring acceptance of composition offer, representations by a state superintendent of banks or of a receiver as to the value of a bankrupt’s assets are not binding upon bankrupt or his estate, and therefore, if false, afford no legal ground for vacating the composition.</p> <p>3. Bankruptcy <@=>386 — -Grounds for vacation of composition.'</p> <p>Under a plan of composition by which bankrupt was required to turn over all his property, consisting largely of real- estate, to a corporation organized to liquidate the same for benefit of his creditors, to avoid saeri- - fice incident to forced sales, overvaluation by bankrupt or others, or even attempted concealment of assets, affords no ground for vacation of the composition.</p>

<p>1. Intoxicating liquors <g=>134 — Regulations prohibiting sale of liquor WITHIN CAMP ZONES.</p> <p>Under Selective Service Act, § 12 (Comp. St. _§ 2019a), authorizing the President to make regulations governing prohibition of “alcoholic liquors” in or near military camps, and prohibiting sale of “intoxicating or spirituous liquors” at any camp, and any “intoxicating liquors, including beer, ale, or wine,” to soldiers in uniform, regulations made by the President cannot be broader than the statute, and cannot extend the scope of the prohibition beyond the articles comprehended within the terms used in the act.</p> <p>2. Intoxicating liquors <3=H34 — “Alcoholic liquor;” “intoxicating or spirituous liquors;” “intoxicating liquor including beer, ale, OR WINE.”</p> <p>The terms “alcoholic liquors,” “intoxicating or spirituous liquors,” and “intoxicating liquors, including beer, ale, or wine” are used as synonymous terms in Selective Service Act, § 12 (Comp. St. § 2019a), prohibiting sale of such liquors to members of the military forces while in uniform.</p> <p>[Ed. Note.- — -For other definitions, see Words and Phrases, First and Second Series, Alcoholic Liquor.]</p> <p>3. Intoxicating liquors <@=5216 — Information for selling liquor near camp.</p> <p>Information charging sale of “alcoholic liquor,” labeled and denominated “Newbro’s Herpicide,” within the prohibited zone around a military camp, held sufficient; whether the article sold was within the prohibition being a matter of proof.</p>

<p>Application by Dr. Richard Christopher Elliott for naturalization. On final hearing.</p>

<p>War <@=o4 — Siam Skditxon Act valid.</p> <p>Daws Mont. Ex. Sess. J918, e. 11, making it an offense, inter alia, to utter contemptuous and slurring language about the flag and language calculated‘to bring the flag into contempt and disrepute, field constitutional and valid as to offenses committed prior to amendment of Espionage Act. tit. 1, § 3, by Act May 16, 1918, § 1 (Comp. St. 1918, Comp. Sfc Ann. Supp. 1919, § 10212c).</p>

In Equity. Suit by" the United States against the American Column & Lumber Company and 332 other defendants. On application for a , preliminary injunction under the federal Anti-Trust Act of July 2, 1890, on the pleadings, and affidavits.

In Bankruptcy. In the matter of Antonio Música and Philip N. Música, individually and as copartners, as A. Música & Son, bankrupts. On petition of Eura P. Prentice, trustee, to review order of referee.

<p>In Equity. Suit by Hazel Rogers and others against Emma Rogers and others.</p>

<p>1. Limitation op actions (1) — Law op forum governs construction.</p> <p>In construing statutes of limitation, the forum governs in construing exception to the bar fixed by tbe statute, as well as in interpreting tbe actual bar itself.</p> <p>2. Courts <®=»366(13) — Construction op limitation law by highest state COURT GOVERNS FEDERAL COURT.</p> <p>In construing a state statute of limitation, a federal court is governed by its construction by tbe bigbest state court, when not in conflict with the federal Constitution, treaties, or laws, but a federal court is not controlled by mere dicta or implications from opinions by tbe stat§ court.</p> <p>8. Limitation op actions <®=>87(1) — Exception regarding temporary absence FROM STATE NOT RESTRICTED TO RESIDENTS.</p> <p>Under Rev. St Tex. art. 5702, providing that limitation shall not run during a° defendant’s temporary absence from the state, etc., the question of the defendant’s residence in the state is immaterial in determining the application of the statute, but its applicability depends on the presence of the defendant in the state, either at the time the cause of action accrued or the right arose out of which the cause of action grew.</p>

<p>Suit by the Dail-Overland Company against Willys-Overland, Incorporated, the Willys-Overland Company, Toledo Lodge No. 105, International Association of Machinists, and others.</p>

<p>In Equity. Bill by the Vonnegut Machinery Company against the Toledo Machine & Tool Company and others.</p> <p>Temporary injunction against certain defendants to issue.</p>

<p>1. Admiralty <g=s>2 — Remedy given by Workmen’s Compensation Act not exclusive. -</p> <p>Under Judicial Code, §§ 24(3), 256(3), vesting in tbe federal courts exclusive jurisdiction of civil causes of admiralty, and maritime jurisdiction, as amended by Act Oct. 6, 1917, §§ 1, 2 (Comp. St. 1918, Comp. St. Ann. Snpp. 1919, §§ 991 [3], 1233), by adding tbe provision “saving * * * to claimants tbe rights to remedies under tbe workmen’s compensation law of any state,” ftie remedy given by such a law is not exclusive of that in the admiralty courts, but the suitor has his election.</p> <p>2. Master and servant •@=110(1) — Shipowner liable eor injury to workman BY INSECURE SCAEEOLD PROVIDED FOB CONSTRUCTION WORK.</p> <p>The shipowner held under duty to see that a plank put up as a scaffold for libelant and another to stand on while building a bulkhead was made safe for their use, and liable for libelant’s injury through falling of the plank by slipping from a narrow cleat against the side of the vessel upon which one end rested.</p> <p>3. Admiralty @=2 — “Saving to suitors their common-law remedies.”</p> <p>The phrase “saving to suitors their common-law remedies,” as used in Judicial Code, § 24(3), section 256, as amended by Act Oct. 6, 1917, §§ 1, 2 (Coinp>. St. 1918, Comp. St. Ann. Supp. 1919, §j§ 991 [3], 1233), means that: the remedy at common law is accorded to suitors, as well as their remedy in admiralty, that the remedies are concurrent, and either may be adopted at the choice of the claimant.</p>

<p>1. Removal of causes <3=^>2f — Action against Director General of Railroads NOT REMOVABLE ON GROUND OF DIVERSITY OF CITIZENSHIP, WHERE CORPORATION IS RESIDENT.</p> <p>An action in a state court against the Director General of Railroads, as government operator of a line of railroad, is not removable on the ground of diversity of citizenship between plaintiff and the corporation owning such line.</p> <p>2. Removal of causes <S==>19(1) — Action for negligence in operation of road by Director General removable as one “arising under the laws of the United States.”</p> <p>An action in a state court against the Director General of Railroads, based on negligence in the operation of a railroad by him under authority of an act of Congress, is one “arising under the laws of the United States,” and removable on that ground.</p> <p>|Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Arising.]</p> <p>3. Courts ®=»302 — Action for negligence in operation of road by Director General of Railroads involves controversy to which United States is PARTY.</p> <p>An action against the Director General of Railroads, arising out of his operation of a railroad line, involves a controversy to which the United States is a party, and is within the jurisdiction of a federal court.</p> <p>4. Railroads <§=5%, New, vol. 6A Key-No. Series — “Carrier” under federal CONTROL DEFINED.</p> <p>in Federal Control Act, § 10 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 3115 %j), providing that “carriers while under federal control” shall be subject to suits, etc., the word “carriers” means the United States, as operator of each of several railroads.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Carrier.]</p> <p>5. Courts <@=>326 — Jurisdiction of District Court of claims against United States.</p> <p>Federal Control Act, § 10 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 3115% j), providing that “actions at law or suits in equity may be brought by and against such carriers and judgments rendered as now provided by law,” provides a code of procedure for this class of claims against the United States totally different from that provided for other claims, and the limitation imposed by Judicial Code, § 24 (20), Comp. St. § 991 (20), on the jurisdiction of District Courts to claims not exceeding §10,000, does not apply to such suits.</p>

<p>In Equity. Suit by the Commercial Pacific Cable Company against the Philippine National Bank.</p>

<p>Sales <§=>52(5) — Evidence as to terms of contract for sale of coal.</p> <p>' Evidence held not to sustain plaintiff’s allegation of a parol contract . with defendant for the purchase and sale of 35,000 tons of coal, but to show that the contract was for 10,000 tons, with a promise by defendant to furnish more, if able.</p>

<p>Carriers <®=^41 — Delivery of coal on shipping orders to conductor held NOT TO CREATE LIABILITY OF CARRIER WHERE RAILWAY COMPANY CONFISCATED COAL.</p> <p>Loading coal on cars of defendant railroad company by a coal company at its mine, and giving the train conductor shipping orders directing consignment of the cars to plaintiff at the scale station, to which only the cars were taken on the shipping orders, and there consigned and waybills issued, held not a delivery of the coal to defendant as carrier for plaintiff; where defendant had a contract with the coal company for fuel coal giving it the right of priority over all other orders, and under which, pursuant to its terms, defendant took the coal for its' own use, notifying the coal company of its action.</p>

<p>1. Shipping <@=53%, New,-vol. 8A Key-No. Series — Vessel under federal CONTROL NOT SUBJECT TO SEIZURE IN REM.</p> <p>That a vessel at the time of a collision bad been taken over by the Railroad Administration and was being used for transportation purposes by the United States does not exempt it from lien for damages caused by its fault; but under the provision of Federal Control Act March 21, 1918, § 10 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 3115% j), that “no process, mesne or final, shall be levied against any property under such federal control,” such vessel is not subject to seizure in a suit in rem while so in use by the government.</p> <p>2. Admiralty <@=>44 — “Mesne process” defined.</p> <p>“Mesne process” is used in the Supreme Court admiralty rules to designate process by which the person of the respondent is arrested, or his property in actions in personam, or the vessel hi actions in rem. is arrested or seized.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Mesne Process.]</p> <p>3. Admiralty <@=>44 — “Mesne process” defined.</p> <p>“Mesne process,” as used in admiralty rule 1 (29 Sup. Ct. xxxix), providing that no mesne process shall issue until the libel shall he filed in the clerk’s office, irom which such process is to issue, means the process intervening between the commencement of the suit by filing the libel and final process.</p>

<p>1. Courts <§=501 — Action against purchaser of railroad property ok CLAM AGAINST FEDERAL RECEIVER IS PROPERLY BROUGHT IN STATE COURT.</p> <p>Under Judicial Code, § 66 (Comp. St. § 1048), authorizing suits against receivers without leave of court, an action against one purchasing property of a railroad company at foreclosure sale, under a decree requiring it to assume the liabilities of the receiver appointed in the foreclosure suit, is properly brought in a state court.</p> <p>sí. Courts <©=>501 — Statutory jurisdiction of federal courts over suits ON CLAIMS AGAINST RECEIVERS REFERS ONLY TO MODE OF COLLECTION.</p> <p>The provision of Judicial Code, § 66 (Comp. St. § 1048), that suits against receivers therein authorized, shall De subject to. the general jurisdiction of the court appointing the receiver does not limit the preceding clause, authorizing suits against the receivers, but merely reserves to the court appointing a receiver jurisdiction over the mode of enforcing collection of the claim when judicially liquidated, so far as necessary to protect the property and adjust the equities of all claimants.</p>

<p>Libel of Information. Proceeding for forfeiture by the United States against one Five-Passenger Ford. Automobile, Engine No. 1827566.</p>

<p>1. Admiralty <§=>26 — Property in possession of admiralty court may be attached BY SAME COURT UNDER COMMON-LAW JURISDICTION.</p> <p>That a vessel is in. possession of a court of admiralty under seizure In a suit in rein will not prevent the levy of a second attachment thereon from the same court in the exercise of its common-law jurisdiction.</p> <p>2. Admiralty <§=jí>j — Award of damage for breach of charter party not BAR TO SECOND ACTION FOR RELIEF FOR BEACH OF OPTION TO PURCHASE.</p> <p>Where a time charterer had an option to purchase at any time during the charter period, the fact that a court of admiralty has awarded him damages for loss of use of the vessel under the charter by reason of its withdrawal by the owner held not a bar to an action at law to recover damages for deprivation of his right to purchase, which the admiralty court was without jurisdiction to award.</p>

<p>Action by the National Casket Company against the United States. On motion to set aside the service of summons.</p>

<p>1. Internal revenue <g=»7 — Increased value from improvement op land BY LESSEE PRIOR TO PASSAGE OP STATUTE NOT TAXABLE AS “INCOME.”</p> <p>Under Civ. Code Cal. § 1013, as to the ownership of fixtures, a building erected by a lessee under a lease prohibiting its removal became the property of the lessor when erected in 1910, and the increase in value therefrom was not taxable under Act Sept. 8, 1916, § 2a (Comp. St. § 6336b), as “income” for the year in which the lease terminated.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Income.]</p> <p>2. Internal revenue <S=7 — Treasury regulations cannot change law as TO WHAT CONSTITUTES INCOME.</p> <p>The Treasury Department has no power to abrogate a substantive rule of law by a regulation directing taxing officers to include permanent im- . provements under leases as income for the year in which the lease ends.</p>

<p>1. Receivers <§=374 — Return of property claimed by receiver held a violation OF INJUNCTION RESTRAINING DISPOSITION OF PROPERTY.</p> <p>One bolding property as a warehouseman for a railroad company, wbo returned it to the consignor on demand, after it bad been demanded by tbe consignee’s receiver,, and it bad been served with a copy of the decree ■ appointing the receiver, and enjoining transfers of tbe consignee’s property, or interference with the receiver in tbe discharge of bis duties, was guilty of violating tbe injunction, whether the consignor had a right of stoppage in transit or not, as it could have protected itself by inter- \ pleader proceedings.</p> <p>2. Contempt <§=328(2) — Advice of counsel not a defense, but to be considered in mitigation.</p> <p>Advice of counsel is not a defense for contempt of an order of the 'court, but will be considered in mitigation of the offense.</p>

In Equity. Suit by Robert K McNeely and another, copartners trading as McNeely & Co., against the E. I. Du Pont de Nemours Powder Company and others. On motions by the defendant corporation to set aside the service, and by the individual defendants to dismiss the bill.

In Bankruptcy. In the matter of the New Orleans .Milling Company,. Incorporated, bankrupt. On review of the order of the referee denying a lien to the Anglo-American Mill Company.

<p>Receivees <@=>174(4) — Leave to sue unpeoittable bait-road in hands of BEOEIVEB DENIED. .</p> <p>Leave to sue a street railway company, for which a receiver has been appointed, for an assault and battery committed prior to the receivership, instead of filing the claim with the special master appointed to take proof of claims, will be denied, where the road is being operated at a loss, the receiver is without funds to defend the action, and the railway company without funds to pay judgments.</p>

Witmer, Judge. Barnet Bevinson was convicted of knowingly and fraudulently presenting a false claim against the estate of a bankrupt, and he brings error.

<p>1. Waters and water courses <§=>228%, New, vol. 10A Key-No. Series — ■ Where irrigation system was sold for bonds requiring validation BY COURT, DATE OF SALE WAS DATE OF DECREE OR VALIDATION.</p> <p>Where a contract for the sale of an irrigation system to an irrigation district, providing for conveyance and payment on or before Febrnary 25, 1915, also gave the district an option to pay in its bonds requiring approval and validation by the court, which was not obtained until June 30, 1915, the date of the decree of validation was properly regarded as the true date of the sale.</p> <p>2. Waters and water courses «§=>228%, New, vol. 10A Key-No. Series — Making of repairs to irrigation system; construed as conditions subsequent AND NOT CONDITIONS PRECEDENT TO SALE OF SYSTEM.</p> <p>Where a contract for the sale of an irrigation system required the seller to make specified repairs and enlargements, and provided that if they were not completed on or before May 15th the buyer might retain a sufficient amount of the purchase price until the work was completed, and that this might, be done after the close of the irrigating season, the making of the repairs and enlargements were conditions subsequent, and not conditions precedent, to the taking effect of the sale and purchase.</p> <p>S. Waters and water courses <§=>228%, New, vol. 10A Key-No. Series — Contract OF SALE OF IRRIGATION SYSTEM CONSTRUED AS NOT REQUIRING ENLARGEMENT TO CAREY QITANTITY OF WATER SOLD.</p> <p>A contract of sale of an irrigation system, together with a water right of 7,500 miners’ inches of water, which required the seller to make specified repairs and enlargements, did not require such an enlargement as would permit 7,500 miners’ inches of water to pass through the system, especially where a lease from the seller to the buyer required the system! to be placed in such repair that 4,000 inches could be distributed.</p> <p>4. Waters and water courses <§=>228%, New, vol. 10A Key-No. Series — Under CONTRACT FOR SALE OF IRRIGATION SYSTEM PAYABLE IN BONDS, SELLER ENTITLED TO INTEREST FROM DATE OF SALE.</p> <p>Where a contract of sale of an irrigation system contained, an option, which the buyer exercised, to pay the purchase price in its own bonds at par value and accrued intea'est, and there was a delay in completing the contract, the seller was entitled to interest from the date the sale became effective, but could not be permitted to retain any of the net revenue received by him after that time.</p>

Appeals from the District Court of the 'United States for the District of Massachusetts; James M. Morton, Jr., Judge. Libel by Fremont jB. Chesbrough against the Boston Elevated Railway Company, with cross-libel by the Boston Elevated Railway Company against Fremont B. Chesbrough. From a decree for libel-ant in the first proceeding, both parties appeal, and the libelant appeals from an adverse decree in the second .proceeding.

<p>Appeal from the District Court of the United States for the Eastern District of Pennsylvania; Oliver B. Dickinson, Judge.</p> <p>In the matter of the Louis J. Bergdoll Motor Company, bankrupt; Frank A. Harrigan, trustee. Louis J. Bergdoll appeals from the order of the District Court.</p>

<p>1. Contracts @=288 — Construction oe contract for road building.</p> <p>Under a contract between a surety company, which, on default of a contractor for which it was surety had taken over completion of a contract with a county for certain road work, and a contracting company, which undertook to complete the work in accordance with the terms of the original contract, to be paid therefor “at the time and upon the towns mentioned in said original contract,” whore the original contract provided for monthly payments on estimates and certificate of the county engineer, the contracting company held entitled to monthly payments only in accordance with such estimates and certificates.</p> <p>2. Contracts @=198(1) — Construction of contract for road building.</p> <p>Under a contract between a surety company, which on default of á contractor for which it was surety had taken over completion of a contract with a county for certain road work, and a contracting company, which undertook to complete the work in accordance with the terms of the original contracts, the contracting company held bound by a provision of the original contract requiring the contractor to “rebuild, repair, restore, and make good at his own expense” all injuries or damages to the work, from whatever cause occurring, before final acceptance of the work, with respect both, to its own work and that done by the original contractor.</p> <p>3. Contracts @=261(3) — Failure to fay installments justifies contractor’s refusal to complete work.</p> <p>Where under a contract labor is to be performed and materials furnished by the contractor over a considerable period of time, involving large expenditures, and payments are also to be made through such period as the work progresses, the covenant of the contractor to perform the work is dependent on that of the other party to make the payments at the times specified in the contract, and, in the absence of other provisions or circumstances excusing it, failure to pay an installment when due will justify the contractor in refusing to complete the work.</p> <p>4. Contracts @=212(1) — Payments “on or about” may be made within reasonable time.</p> <p>A provision of a contract requiring payments to be made “on or about” the 15th of each month held to give the party paying a reasonable time after the 15th.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, On or About.]</p> <p>5. Work and labor <®=»14(2) — Recovery on termination of contract not affected BY PARTIAL PAYMENTS.</p> <p>A contractor for construction work, who is justified in terminating tliecontract before completion for default of tbe other party, if otherwise entitled to recover on a quantum meruit for all the work done and materials-furnished under the contract, is not precluded from doing so because he has received various partial payments as the work progressed, where the contraot is not divisible, in the sense that such partial payments did not fully discharge all of the other party’s obligations for all the work that had been done and all the materials that had been furnished up to the end of the periods covered by the partial payments, respectively.</p>

<p>1. Assignments foe benefit of creditors @=»S — Trust deed construed as ASSIGNMENT.</p> <p>A trust deed, by which ail insolvent corporation transferred all its property, except that mortgaged to secure bonds to trustees, to be sold and the proceeds to be applied on its debts, with preferences to centain creditors, and others to bo paid pro rata, held in effect a voluntary .assignment for creditors.</p> <p>2. Subrogation <£^>7(2) — Surety paying bond to United States subrogated to its right to priority of claim.</p> <p>Under a general assignment by an insolvent corporation to trustees for benefit of creditors, tbe property passes subject to the right of the surety on a bond given by the corporation to tire United States, which, has paid the debt, to priority of payment by subrogation to the right of the United States by virtue of Rev. St. §§ 3466-3468 (Comp. St. §§ 6372-6374).</p> <p>3. States <@=>4 — Subrogation of surety to right of priority of United States governed by federal law.</p> <p>The provisions of Rev. St. § 3468 (Comp. St. § 6374), giving a surety which has paid the debt of its principal to the United States by subrogation priority in distribution of the assets of such principal in insolvency, supersede the state laws governing such distribution.</p> <p>4. Principal and surety <@=>190(8) — Surety has right to interest on AMOUNT PAID ON BOND.</p> <p>The surety on a bond given to the United States by a contractor, who has paid the debt of his principal to the government, the amount of which was definitely determinable under the contract, has a liquidated claim against his principal for the amount paid, with interest from date of payment.</p> <p>5. Assignments for benefit of creditors <@=>317 — Claimants entitled to interest on preferential claim.</p> <p>A preferential claim against the estate of an insolvent is entitled to interest, where interest would otherwise be recoverable, and there are sufficient funds to pay claims of its class in full.</p>

Action by the Dwight & Lloyd Sintering Company, Incorporated,, against the American Ore Reclamation Company, to recover an unpaid balance of royalties claimed to be due from defendant on a license-agreement.

<p>1. Bankruptcy @=>166(4) — Payment two days before maturity does not SHOW BAD FAITH, INVALIDATING PREFERENCE.</p> <p>The mere fact that those in charge of a sick man’s affairs paid on Friday a note due the following Monday does not authorize a holding that the bank received payment in bad faith, knowing a preference would thereby result.</p> <p>2. Bankruptcy @=>166(2) — Intent of transferror is immaterial in determining PREFERENCE.</p> <p>The intent of the transferror of property to prefer the transferee as a creditor is immaterial in determining whether the transfer was a voidable preference, under Bankruptcy Act, § 60b (Comp. St. § 9644).</p> <p>3. Bankruptcy @=>304 — Intent to prefer creditor does not make conveyance FRAUDULENT AS MATTER OF LAW.</p> <p>The mere fact that the debtor intended to prefer a bank as a creditor by paying its claim two days before maturity, having an intimation that other creditors would start bankruptcy proceedings, does not in law establish a fraudulent transfer, void unless a present consideration is paid, under Bankruptcy Act, § 67e (Comp. St. § 9651); a preference being merely malum prohibitum, while a fraudulent transfer is malum in se.</p> <p>4. Bankruptcy @=>180 — Intention to prefer creditor does not warrant INFERENCE OF FRAUD.</p> <p>The mere intention of a debtor to prefer a particular creditor by paying the claim, before threatened bankruptcy proceedings were instituted is not sufficient to warrant an inference that the payment was a fraudulent transfer to hinder, defraud, or delay creditors.</p>

Pollock, Judge. Action by Robert S. Tiernan and another against the Chicago Rife Insurance Company. Judgment for the plaintiffs for a part only of the amount claimed, and both parties bring error.

<p>In Error to the District Court of the United States for the Eastern District of Louisiana; Rufus E. Foster, Judge.</p> <p>Samuel Goldman was convicted of knowingly receiving a coil of rope that had been landed from a vessel from a foreign port without permit from the collector of internal revenue, and he brings error.</p>

<p>- In Error to the United States District Court of the Northern District of Florida; William B. Sheppard, Judge.</p> <p>Action by the City of Pensacola against the United States Fidelity & Guaranty Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Navigable waters <@=»24 — Under statute requiring marking oe wreck, DUTY ARISES ONLY AFTER INFORMATION OF WRECK.</p> <p>Act March. 3, 1899, § 15 (Comp. St. § 9920), making it the duty of the owner of any craft sunk in a navigable channel to immediately mark the same with a buoy by day and a lighted lantern at night, and to maintain such marks until the wreck can be removed, under penalty of fine or imprisonment, is a criminal statute, and such duty does not arise until the owner receives information of the wreck.</p> <p>2. Navigable waters <§=^24 — Presumption of negligence from unmarked WRECK NOT CONCLUSIVE.</p> <p>Failure of owner of a sunken vessel to maintain a light over it at night, as required by Act March 3, 1899, § 15 (Comp. St. § 9920), raises a presumption of negligence in a civil suit for collision with such vessel at night in New York harbor, but the presumption is not conclusive.</p> <p>3. Navigable waters <@=324- — Failure to maintain light on sunken vessel.</p> <p>Owner of a scow, which capsized and lay awash on Red Hook Flats, New York harbor, held not chargeable with negligence, which rendered it liable for a collision with the scow at night, because it failed to maintain a light thereon, where before night it placed a lighted lantern of approved pattern on the boat, fixed to a sufficient pole 5 feet above the water, but, presumably by the action of the waves during a gale in the night, the light was extinguished.</p> <p>Ward, Circuit Judge, dissenting.</p>

<p>1. Bankruptcy <@=>140(3) — Illegal clauses in agency contract do not PRECLUDE PRINCIPAL FROM RECOVERING PROPERTY FROM AGENT’S TRUSTEE.</p> <p>Where coal was delivered to an agent under a contract between the principal and the seller, the fact that a subsequent contract between the principal and agent, defining terms of agency, contained illegal provisions for control of the agent, does not preclude recovery by the principal of the coal and proceeds of sale thereof from the agent’s trustee in bankruptcy.</p> <p>2. Bankruptcy <@=>440 — Appeal proper to review order denying recovery of property from agent’s trustee; “controversy arising in bankruptcy proceeding.”</p> <p>A petition to reclaim property from the trustee in bankruptcy of petitioner’s agent presents a “controversy arising in a bankruptcy proceeding,” within Bankruptcy Act, § 24a (Comp. St. § 9608), and- the proper remedy for review is by appeal, not by petition to revise.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, Second Series, Controversy Arising in Bankruptcy Proceedings.]</p>

<p>1. Copyrights <§=48 — Notice effective to create statutory license, THOUGH GIVEN PENDING SUIT WITHOUT KNOWLEDGE OF COUNSEL.</p> <p>A notice of intention to use a copyrighted song in making phonographic records, under section le of' the Copyright Act (Comp. St. § 9517), was effective to create the compulsory license provided for by that section, though it was given pending a suit for infringement, without the advice or knowledge of defendant’s counsel, especially where it was accepted and royalties paid.</p> <p>2. Appeal and error <§=837(9) — Pacts may be noticed aliunde the record.</p> <p>In a suit for infringement of a copyright, the Circuit Court of Appeals may notice aliunde the record the facts that pending the appeal the statutory notice has been given to create a compulsory license, and that it' has been accepted and royalties paid.</p> <p>3. Copyrights <§=48 — Licensee estopped to deny licensor’s title. '</p> <p>Where, pending appeal in a suit for infringement of a copyright, defendant gave the statutory notice to obtain a compulsory license, it was estopped from thereafter denying plaintiff’s title.</p> <p>4. Copyrights <§=>48 — Notice of intention to make instrumental phonographic RECORDS CREATES LICENSE AS TO INFRINGING VOCAL RECORDS.</p> <p>Where plaintiff’s copyright covered both the words and music of a song, and defendant without a license made a vocal 'reproduction on a phonographic record, and pending a suit for infringement gave the statutory notice that it intended to make and sell violin records, it became a licensee as to both records; there being no legal difference between the two records for purposes of infringement.</p> <p>5. Appeal and error <§=781 (2) — Appeal in copyright infringement suit DISMISSED AS MOOT, WHERE DEFENDANT BECAME STATUTORY LICENSEE PENDING SUIT.</p> <p>Where, pending appeal in a suit for infringement of a copyright by making phonographic records of the copyrighted song, defendant gave the statutory notice to obtain a compulsory license, and the damages rendered did not exceed the statutory royalties, the questions involved in defendant’s appeal are moot, and the appeal will be dismissed.</p>

<p>In Error to the District Court of the'United States for the Eastern District of New York.</p> <p>Action at law by Harry O. Keener, doing business as the Philadelphia Wrecking & Contracting Company, against Philip Goldfarb. Judgment for plaintiff, and defendant brings error.</p>

Foster, Judge. ■ Action at law by the Sutherlin Construction Company' and others against the United States Fidelity & Guaranty Company and another. Judgment for plaintiffs, and defendant named brings error.

<p>1. Insurance <§=98 — Broker is agent of party who first employed him.</p> <p>An insurance broker, like other brokers, is primarily the agent of the first person who employs him, and is therefore ordinarily insured’s agent.</p> <p>2. Insurance <§=c80 — Agent within scope of authority is agent of insurer.</p> <p>An insurance agent, within the scope of his actual authority, is the agent of the insurer whether, in trade parlance, described as general, special, issuing, local, or soliciting agent.</p> <p>3. Insurance <3=73 — Person may be both agent and broker.</p> <p>A person may be both an insurance agent and an insurance broker, and at different times act in both capacities.</p> <p>4. Trial <§=139 (1) — Verdict should be directed only when there is no evidence tending to prove issue.</p> <p>A verdict should be directed only when there is no evidence before the jury, either strong or weak, tending to prove the issue on the part of the one against whom the direction is given.</p> <p>5. Insurance <§=668 (2) — Whether broker was acting as insurer’s agent in applying for insurance a jury question.</p> <p>Whether an insurance broker, who was also agent for the insurer, with authority to issue insurance in certain territory, not embracing the insured property, was acting as its agent in procuring the issuance of insurance by another authorized agent, in doing which he made material misrepresentations, was a question for the jury.</p> <p>6. Trial <3=56 — Becords properly excluded where facts already had been SHOWN BY ORAL EVIDENCE.</p> <p>in an action wherein it was claimed that an insurance broker, who was also, agent for the insurer, was acting as such in procuring insurance through another agent, records showing his agency,were properly excluded, where he had already testified to his agency, its nature and extent, and the recorded papers added nothing to his testimony.</p> <p>7. Insurance <§=100 — Agency could be shown by agent’s testimony, THOUGH NOT BY Ills declarations.</p> <p>That an insurance broker was the agent of insured could be shown by his testimony, though not by his acts and declarations.</p>

<p>1. Appeal and error <@=>848(2) — Review op judgment on findings of referee LIMITED TO QUESTION WHETHER FINDINGS ARE SUPPORTED BY ANY EVIDENCE.</p> <p>Where a case at law is by consent referred to a referee, to hear and determine the issues, the only questions open on writ of error are whether the referee’s findings support the judgment entered thereon, and whether such findings are supported by any evidence.</p> <p>2. Interest <@=>19(2) — Allowable on unliquidated demands, determinable BY COMPUTATION.</p> <p>Interest is allowable on an unliquidated demand in cases where it can be determined what amount is due, either by mere computation, or by computation in connection with established market values, or other generally recognized standards.</p>

Libel by Harris Appelbaum, as guardian ad litem of Herman Appelbaum, against the steamship Santa Barbara; the Grace Steamship Company, claimant. Decree for libelant (255 Fed. 231), and claimant appeals.

<p>In Error to the District Court of the United States for the Eastern District of Louisiana; Rufus E. Foster, Judge.</p> <p>Action by James S. Winfield against the St. Tammany Bank & Trust Company of Covington, La. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Copyeigtits <2=55 — Of book not infkinged.</p> <p>A copyright of a hook or pamphlet containing the official report of General Pershing relating to the war, with a portrait of the General on the cover and drawings of military scenes on the margins of the pages, held not infringed hy a much similar book, containing tbe same report and similar, but not the same, portrait and drawings, which constituted tbe only portion of tbe book subject to copyright.</p> <p>2. Copykigitts C=57 — What constitutes “infkingement.”</p> <p>“Infringement” of a book consists in the copying of some substantial and material part.</p> <p>[Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Infringement.]</p>

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>Action by the United States against 2007/12 Dozen Wool Hose and Half Hose; Henriette Ruehl, claimant. Judgment for the United States, and claimant brings error.</p>

<p>1. Patents <@=>328 — For, rewireable screen construction valid, but not INFRINGED.</p> <p>The Watson patent, No. 956,239, for rewireable screen construction, held valid, as involving a degree of invention over the prior art, but claims Nos. 3, 10, 11, 12, and 13 not infringed by a structure manufactured under tbe Higgin patent, No. 1,171,952.</p> <p>2. Patents <@=>73 — Earlier issued patent was prior art, though later PATENTEE CARRIED INVENTION BACK OE ISSUE DATE.</p> <p>A patent actually issued before plaintiff’s patent was applied for was a part of the prior art as to plaintiff, though plaintiff carried his invention back of tbe issue datei of the earlier patent.</p> <p>3. Patents <@=>310(7) — 'Answer in infringement suit held to sufficiently ALLEGE PRIOR PATENT AS ANTICIPATION.</p> <p>An allegation in the answer in a patent infringement suit that all the substantial and material parts of plaintiff’s structure were, prior to the date of the alleged discovery or invention thereof, or more than two years prior to the date of the applications, invented, patented, described, and shown in numerous patents and printed publications, and more particularly in certain patents mentioned, including one to B., sufficiently pleaded the patent to B. as an anticipation.</p> <p>4. Patents <@=>168(2) — Amendment of claim to meet objection of double PATENTING IS BINDING ON PATENTEE.</p> <p>An amendment of a patent claim to meet the Commissioner’s objection of double patenting is as binding on the patentee as an amendment to avoid rejection on tbe prior art, especially as the limitation, if intentionally made, would be binding, though voluntary.</p> <p>5. Patents <@=>328 — Patent for improvement in rewireable screens held INVALID IN PART, AND VALID AND INFRINGED IN PART.</p> <p>Claims 1 and 2 of the Watson patent, No. 836,475, for an improvement on the tubular construction of rewireable screen frames, held invalid as - involving no more than the skill of a mechanic trained in the sheet metal art, but claim 3 valid and infringed by a structure manufactured under the Higgin patent, No. 1,171,952.</p> <p>6. Patents <@=>66 — Copending application is not prior art, though later APPLICATION PURPORTS TO COVER IMPROVEMENT THEREON.</p> <p>The rule that, where two patents are granted on copending applications, neither of which claims any invention claimed in the other, the one later granted, but earlier applied for, cannot, in determining invention, be considered prior art as against the later applied for, but earlier issued patent, is not changed by tbe fact that the later application purports to cover an improvement on the invention embraced in the earlier application.</p>

Warren Davis, Judge. Patent infringement suit by Otto Rohm and the Rohm & Haas Company against the Martin Dennis Company. From a decree dismissing the bill (263 Fed. 106), plaintiffs appeal.

<p>Patents <S=o328 — For smokeless furnace held anticipated. The Foltz patent, No. 1,235,516, for a furnace, held void for anticipation.</p>

<p>In Equity. Separate suits by Alfred Kurtz and the Hat Dining Board of Trade, Incorporated, against Meyer Blatt and Nathan Silberstein, copartners, and against the Columbia Hat Frame Company, for infringement of Kurtz patent, No. 1,216,140, February 13, 1917, for hat lining.</p>

<p>1. Patents <©=>328 — Fór dust collector valid and infringed.</p> <p>The Sly patent, No.-716,624, lor a dust collector, held valid, not limited to one with a vibratory partition, and infringed.</p> <p>2. Patents <@=>32 — Presumption of validity strengthened by extensive use.</p> <p>The presumption that a patent is valid is reinforced by proof that the patented device has gone into extensive use.</p> <p>3. Patents <@=>167(2) — Use of drawing number or letter not limitation to PRECISE FORM SHOWN. ,</p> <p>The mere use in a patent claim of a drawing number or letter does not necessarily limit the patentee to the precise form shown In the drawings, if such limitation is not required by the prior state of1 the art.</p> <p>4. Patents <©=>168(1) — Pointing out matter as distinguishing device FROM EARLIER ONES NOT AN ESTOPPEL, WHEN CLAIM NOT MODIFIED.</p> <p>That a patentee, in an argument with the examiner, found in the vibratory characteristic of a feature of his device one of several distinctions which he drew between his device and earlier ones, did not raise an estoppel, where there was no modification of the claim in consequence thereof.</p> <p>5. Patents <@=>301(3) — Injunction of infringement denied, where patent HAD EXPIRED.</p> <p>Where a patent expires pending suit for its infringement, plaintiff will not be granted an injunction.</p>

<p>In Equity. Suit by the Wofford Oil Company against J. Q. Smith, Attorney General of Alabama, and others. On application for preliminary injunction.</p>

<p>In Bankruptcy. In the matter of Elton C. Dagwell, bankrupt. On review of order of referee.</p>

<p>In Equity. Suit by the French Republic (la Republique Frangaise) against the Inland Navigation Company and the Philip A. Rohan Boat, Boiler & Tank Company. On motion to strike out defendants’ counterclaim.</p>

<p>In Equity. Suit by Rufus C. Elder and others against the Western Mining Company and others.</p>

<p>In Equity. Bill by the City of Jamestown against the Pennsylvania Gas Company and the National Euel Gas Company. On motion to dismiss.</p>

<p>At Eaw. Action by the United States against the United States Fidelity & Guaranty Company, surety, and Joseph B. Dart, administrator.</p>

' In' Bankruptcy. In the matter of Walter H. Bradley, bankrupt. , Referee’s report, that mortgages given by the bankrupt to his daughters represented trust funds for the daughters’ benefit, approved.

<p>Benjamin N. Ford and the Matthew Addy Company were indicted for selling coal as jobbers at a price including a profit in excess of that fixed by F,xecutive Order of August 23', 1917. On motion to quash the indictment.</p>

<p>At Law. Interpleader by the New England Mutual Life Insurance Company against Katherine Reid and Ethel Banta Durboraw. On final hearing.</p>

<p>Courts <S=>274 — Federal courts; in action against Director General oe Railroads, service on employés insufficient.</p> <p>Temporary possession of cars of a railroad company foreign to the district by employés engaged in operation of another road within the district, incidental to use of such cars in interstate traffic, both roads being under federal control, held not to constitute such employés agents of the foreign company, or of the Director General, on whom valid service could be made in an action against the Director General for an injury received on the foreign road without the district.</p>

<p>Proceeding by Emily Catón Mactavish against Joshua W. Miles, as Collector of Internal Revenue.</p>

<p>Appeal from the Supreme Court of the District of Columbia.</p> <p>John William Henry was convicted of embezzlement and appeals.</p>

<p>Appeal from the Patent Office.</p> <p>Interference proceedings in the Patent Office between George E. Molyneux and Dudley S. Seymour. From a decision for the senior party, Seymour appeals.</p>

Interference proceeding in the Patent Office between George E. Molyneux and Dudley S. Seymour. From a decision awarding priority, Seymour appeals. C. L. Sturtevant and E. G. Mason, both of Washington, D. C., for appellant. John F. Heine, of Elizabeth, N. J. (Henry J. Miller, of Elizabeth, N. J., on the brief), for appellee.

<p>]. Patents <§=91 (1) — Junior party has burden of proof in interference PROCEEDING.</p> <p>In a patent interference proceeding, the junior party has the burden of proof.</p> <p>2. Patents <§=>90(3) — Only reasonable diligence required between disclosure AND FILING APPLICATION.</p> <p>The diligence required of an inventor between the date of disclosing his invention and filing an application for patent need not be extraordinary, hut only reasonable under all the circumstances, including the health, means, etc., of the inventor.</p> <p>3. Patents <§=>91 (4) — Junior party in interference proceeding was diligent IN FILING APPLICATION.</p> <p>A junior party in a patent interference proceeding, filing his application for making a pneumatic tire fabric some 2% years after disclosing his invention, held to have acted with reasonable diligence, in view of evidence showing he was absent for some time from the place at which his draftsmen were working, that he had kept in communication with them, and had frequently consulted an experienced tire constructor, etc.</p>

Orion T. Whiting was convicted of'bringing intoxicating liquors into the District in violation of the Reed Amendment, and brings error.

<p>Appeal from Decision of the Assistant Commissioner of Patents. Patent application by Nathan M. Dower. From a decision rejecting certain claims, the applicant appeals.</p>

<p>Appeal and error <©=>773 (2) — Patent appeal dismissed for failure to file BRIEF.</p> <p>Under rule 8, § 4b, providing that an appeal may be dismissed ior fail- . ure to file a brief within the specified time, appellee’s motion to dismiss a patent appeal for appellant’s failure to file a brief within the extended time allowed him will be granted, especially where the Patent Office tribunals had united in holding against appellee on a question of fact.</p>

Haight and J. Warren Davis, Judges. Action by Roland M. Smythe against the Inhabitants of the Township of New Providence in the County of Union and State of New Jersey. Judgment for plaintiff for an insufficient, amount (253 Fed. 824), and both parties bring error.

<p>In Error to the District Court of the Canal Zone; Wm. H. Jackson, Judge.</p> <p>Action at law by C. Quelquejeu against the Texas Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from the District Court of the United States for the Northern District of West Virginia, at Martinsburg; Alston G. Dayton, Judge.</p> <p>in the matter of the Adamantine Clay Products Company, bankrupt; Wade C. Kilmer, trustee. From an order of the District Court, the First Savings & Banking Company, of Dayton, Ohio, appeals.</p>

<p>In Error to the District Court of the United States for the Western District of South Carolina, at Greenville.</p> <p>Action by Mary Eucile Belue against the Order of United Commercial Travelers of America. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Courts <@=»262(3) — Federal court of equity will ejntertain suit for RELIEF FROM PROBATE COURT DECREE OBTAINED BY FRAUD.</p> <p>A suit may be maintained in a federal court of equity for relief from a decree of distribution rendered by a state probate court on allegations that the trustees under the will were attempting to deprive plaintiff of her property, and, in violation of their trust, by their importunities and representations, willfully induced the court to make the decree ox parte, without plaintiff being present or being a party, all of which was well known to the defendant trustee.</p> <p>2. Wills @=a686(l) — Beneficiary's divorce entitled her to property under PROVISION APPLICABLE, IF SHE BECAME A WIDOW OR SINGLE WOMAN.</p> <p>Under a will giving property in trust for a daughter for life, and at her death, during coverture without issue, to collateral relatives, but providing that, if she became a widow or a single woman, the whole property should be distributed to her, her divorce from her husband entitled her to the property, though she afterwards remarried.</p> <p>Ross, Circuit Judge, dissenting in part.</p>

Petitions to Revise Orders of the District Court of the United States for the Eastern District of New York. In the matter of the Franklin Brewing Company, bankrupt. On petitions of Plenry Doscher and of Henry Doscher and others, executors of Claus Doscher, deceased, to revise orders of the District Court.

<p>1. Commerce <@=27(5) — 'Watchman on pier employed in interstate commerce.</p> <p>A watchman employed by a railroad company on a pier used solely in receiving and forwarding freight in interstate commerce, who at the time of injury was assisting, under orders of a superior, in readjusting a door of the pier shed, so it could he opened to permit taking out freight for delivery to consignees, held to have been employed in interstate transportation, or in work so closely related to it as to be practically a part of it, and within employers’ liability Act April 22, 1908, § 1 (C'omp. St. § 8657).</p> <p>2. Master and servant <@=>226(2) — Risk op negligence op employer or his . AGENTS NOT ASSUMED.</p> <p>The risk of negligence of an employer or his agents or servants is not one incidental to the employment, and is not assumed by an employd, unless he is aware of such negligence, or it i's so obvious that he should know of it.</p> <p>Hough, Circuit Judge, dissenting.</p>

<p>In Error to the District Court of the United States for the Eastern District of New York.</p> <p>Action at law by John P. Parry against the Cricket Steamship Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Internal revenue ©=59 — Deduction foe depreciation of property under Corporation Tax Act.</p> <p>Under Corporation Tax Act Aug. S, 1909, § 38, providing that the net income of a corporation or insurance company shall be ascertained by deducting from its gross income received within the year “(2) all losses actually susiained within the year, * * * including a reasonable al-</p> <p>lowance for depreciation of property, if any,” an insurance company, the greater portion of whose assets consists of stocks, bonds, and other securities, held entitled to a deduction of the amount of the market depreciation of such securities during the year.</p> <p>2. Internal revenue <®=>28 — Issues in action to recover tax paid ; burden of proof and evidence.</p> <p>In an action against a collector of internal revenue to recover a tax alleged to have been illegally exacted, plaintiff has the burden to prove that the tax collected, or some part of it, was not due, and defendant may give in evidence anything tending to show that no debt was due to plaintiff when the action began, whether such absence of indebtedness depends on the legality of iho tax exacted, or the existence ol' another tax right against plaintiff, enforceable through defendant.</p> <p>3. Internal revenue —Excess premiums of mutual insurance company NOT “INCOME.”</p> <p>Excess premiums, collected by a mutual insurance company and returned to stockholders, or applied to their credit, do not constitute “income” of the company, within Corporation Excise Tax Act Aug. 5, 1909, § 38.</p> <p>[Ed. Note. — For other definitions, see Words ahd Phrases, First and Second Series, Income.]</p> <p>4. Internal revenue ©=38 — Interest allowable on recovery in action AGAINST COLLECTOR.</p> <p>Interest hold properly allowed in an action against a collector of interna) revenue on the amount of tax held to have been illegally exacted from plaintiff.</p> <p>5. Courts ©=>40(5(2) — Circuit Court of Appeals not authorized to enter PINAL JUDGMENT AT LAW.</p> <p>Judicial Code, § 2(59, as amended by Act Feb. 2(5, 1919 (Comp. St. Ann. Supp. 1919, § 124(5), Iwld not to authorize the Circuit Court of Appeals to enter final judgment on reversal of a judgment at law for error.</p>

Suit in equity by the Westinghouse .Electric & Manufacturing Company against the Brooklyn Rapid Transit Company and others. From an order denying an application of the Equitable Trust Company of New York, as trustee under a first refunding gold mortgage, for the payment* of $650,000 received by Bindley M. Garrison, as receiver, in payment of certain bonds of the Sea Beach Railway Company, the trustee appeals.

Harry Krichman was convicted of giving money to induce unlawful action by one in an official function under the government, and he brings error.

<p>1. Appeal and error @=>3170(1) — Requirement to disregard technical errors.</p> <p>The purpose of amendment of Judicial Code, § 269, by Act Feb. 26, 1919 (Comp. St. Ann. Supp. 1919, § 1246), providing that appellate courts shall give judgment after examination of the entire record without regard to technical errors, defects, or exceptions which do not affect substantial-rights of the parties, is to prevent reversal, of judgments because of technical errors which, though properly presented, do not affect substantial ' rights, and it does not require the court to decide on the whole record whether exceptions were taken or not, or to overlook defects duo to negligence, ignorance, or inadvertence.</p> <p>2. Seamen @=>29(4) — Contributory negligence no defense to action for injury.</p> <p>In suits by seamen, whether in the admiralty or in courts of common law, contributory negligence does not defeat their right to recover indemnity for injury, if otherwise entitled to it, though it is an element which may bo considered in determining wliat the amount of indemnity should be.</p> <p>3. Seamen @=>‘!9(2) — It is owner’s duty to maintain safe appliance for seamen’s use.</p> <p>It is the duty of a shipowner to furnish and maintain equipment and appliances for use of seamen free from defects known or which should be known, and it is not a defense to an' ac-tioa for injury to a seaman from a defective appliance that the particular manner of injury might not reasonably have been anticipated.</p> <p>4. Seamen @=>29(2) — I-Iigii degree of care as to tools and appliances required OF EMPLOYER.</p> <p>A much higher degree of care as to tools and appliances is required of employers of seamen than of employers of shore servants, who may at any time withdraw from service and refuse to use tools and appliances which they think dangerous.</p>

<p>In Error to the District Court of the United States for the Eastern District of Illinois.</p> <p>Action by Harley Carter and F. W. McClain against E. R. Mickelberry. Judgment for plaintiffs for less than claimed, from which they bring error.</p>

<p>Courts —Supreme Court only has jurisdiction on appeal where DECISION OP LOWER COURT IS BASED ON WANT OE JURISDICTION.</p> <p>Judgment of a District Court, dismissing an action for want of jurisdiction over tho defendant, although as incidental to such decision the court determined other questions, such as tho effectiveness of attempted service under the laws of the state, is reviewable only by the Supreme Court, under Judicial Code, § 238 (Comp. St. § 1215).</p>

- In Error to the District Court of the United States for the Southern District of New York." Action by Herman A. Bauman for personal injuries against the Black & White Town Taxis Company. Direction of verdict for defendant. Plaintiff brings error.

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>Action by Hannah Devine against the Pennsylvania Railroad Company. Judgment for plaintiff, 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 in admiralty by the Andean Trading Company against the Pacific Steam Navigation Company and the Panama Railroad Company. Decree for respondents, and libelant appeals.</p> <p>Reversed.</p>

<p>Petition to Revise Order of the District Court of the United States for the Southern District of New York.</p> <p>In the matter of Elias W. Samuels, bankrupt. On petition by Samuel C. Cohen, trustee, to revise an order of the District Court.</p>

<p>In Error to the District Court of the United States for the Eastern District of Louisiana; Rufus E. Foster, Judge.</p> <p>Criminal prosecution by the United States against Charles Tugendhaft. Judgment of conviction, and defendant brings error.</p>

' In Error to the District Court of the United States for the Western District of North Carolina, at Asheville; James E. Boyd, Judge. Action by Samuel Hawkins against the Champion Lumber Company. Judgment for defendant, and plaintiff brings error.

<p>Sales <S==>52(5) — Evidence showing no contract to furnish oak lumber. Findings of the trial court with respect to the terms of a contract to furnish lumber for repair of a vessel held supported by the evidence.</p>

<p>Internal revenue <®=»47 — Conviction oe illegal retail liquor dealer sustained BY EVIDENCE.</p> <p>Judgment of conviction for carrying on the business of retail liquor dealer without having paid the special tax therefor held sustained by the evidence.</p>

<p>Patents <©=328 — Foe tjnderreamer valid and infringed.</p> <p>The Wilson patent, No. 1,183,151, for an underreamer, held to cover a structure of which the patentee was the original and true inventor; and also held not anticipated, valid, and infringed.</p>

<p>Appeal from the District Court of the United States for the District of Oregon; Wolverton, Judge.</p> <p>Suit by Herbert L. Hildreth against Jim M. Mastoras. Decree for complainant, and defendant appeals.</p>

<p>1. Patents <§=>165 — Claim measures extent of invention and infringement.</p> <p>Tlie claim, not the patent, defines the invention, and measures the infringement.</p> <p>2. Patents <§=>107(2) — Claim cannot be enlarged by specification.</p> <p>The privilege of a patent covers only that which is both described and claimed; the description may limit the claim, but cannot enlarge it.</p> <p>3. Patents <§=>107(2) — Drawings cannot supply absence of written description.</p> <p>While drawings may help an ambiguous description, they cannot supply the absence of any written description of a feature of the invention.</p> <p>4. Patents <§=>157(1) — Liberal construction to effect their intent.</p> <p>Patents are to be construed liberally to effect their real intent, which must he ascertained from the specification and measured by the claim.</p> <p>5. Patents <§=>328 — Claim for automatic tank heat regulator held valid but not infringed.</p> <p>Claim 1 of patent 1,102,035, for an automatic tank regulator, held valid, hut, as construed in the light of defendant’s prior machine, not infringed.</p> <p>6. Words and phrases — “Trap.”</p> <p>A “trap” is a seal of water or other fluid to prevent the passage of gases through a, pipe with which it is connected.</p> <p>(Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Trap.]</p> <p>7. Patents <§=>157(2) — claim to be construed to renderi it valid.</p> <p>A claim should be construed so as to render it valid, not so as to include a device in the prior art.</p> <p>8. Patents <§=>157(2) — Claim foe “conduit” cannot be construed to mean long-cooled conduit.</p> <p>Where one element in the ciaim for automatic tank heat regulator was a “conduit,” which means a channel, including tube or pipe, for conveyance of fluids, it cannot he construed to mean a long-cooled conduit, to avoid invalidity in view of defendant’s prior machine, and to show infringement by defendant’s subsequent machine in which the conduit was lengthened.</p>

<p>Patents <§^>328 — Eon electric lamp socket infringed.</p> <p>The Weber patents, No. 743,206, claim 4, and No. 816,812, claim 1, both for incandescent electric lamp sockets, hold infringed.</p>

<p>Patents <3^s>328 — Fob hot aib conduit not infringed.</p> <p>The Scherer patent, No. 1,085,303, for a double wall hot air conduit, being for an improvement of narrow scope, held not infringed.</p>

<p>At Law. Action by John C. Davis, trustee in bankruptcy by Charles F. Willey, against F. T. Willey.</p>

<p>In Admiralty. Suit for salvage by the Merritt & Chapman Derrick & Wrecking Company against the steamship Noelle.</p>

<p>Internal revenue Excise tax on sales oe automobile trucks as UNITS.</p> <p>TUo excise tax oí 3 por cent, of the selling- price oí' “automobile trueles * * sold by the manufacturer, producer, or Importer,” imposed by Act Oct. 3, 3917, c. 68, § 600 (Comp. St. 1918, Comp. St Ann. Supp. 1919, § 6809"¡in), held collectible only on -ales of automobile tracks as units.</p>

<p>In Admiralty. Suit by Gerassimo Lykiardopulo, owner of the steamer Nicholas ex Albemarle, against the tug Gard B. Reynolds and others, to recover damages for breach of towing contract</p> <p>Dibel to recover damages for breach of towing contract.</p>

<p>Shipping <§=5125 — Vessel held liable fob negligent injury to cargo, WHERE DEVIATION OCCURRED.</p> <p>A schooner on a voyage from New York to Charleston, with cargo of garbage tankage, a combustible substance, which, because of a broken compass and injured seaman, deviated and entered Hampton Roads, where, with knowledge of the owners, she remained for more than six weeks, when fire occurred in the cargo from spontaneous combustion, held liable to the cargo owner for its loss.</p>

<p>In Equity. Suit by the Maryland Distilling Company of Baltimore City against Joshua W. Miles, as Internal Revenue Collector. On motion to dismiss the bill.</p>

In Equity. Bill by Hannah & Hogg against Charles E. Clyne, District Attorney for the Northern District of Illinois, and Julius E. Smietanka, Collector of Internal Revenue for the First Collection District of Illinois. On motion for preliminary -injunction and counter motion to dismiss the bill.

<p>Commerce <S^>88 — Order fixing bates not equivalent to finding that previous BATES WERE EXCESSIVE.</p> <p>An order of the Interstate Commerce Commission, fixing rates for the future, is not the equivalent of a finding that rates previously charged and collected were unreasonable and unjust, which will support a judgment awarding reparation to a shipper; hut there must be a specific finding as to the reasonableness of the rates challenged, and proceedings for that purpose, and for fixing future rates, are, or may be, entirely separate and distinct.</p>

<p>In Equity. Bill by the Amalgamated Oil Gas Corporation against the City and County of San Erancisco and Charles Towe, as Eire Marshal of said City and County.</p>

<p>1. Internal revenue <©=>8 — Inheritance tax is tax on privilege op transfer.</p> <p>The inheritance tax imposed by Act Sept. 8, 1916 (Comp. St. 1916, §§ 6336%a-6336%m), is not a tax on the property of the decedent, but on the privilege of transfer by death.</p> <p>2. Internal revenue <@=»8 — Nature of inheritance tax stated.</p> <p>The inheritance tax imposed by Act Sept. 8, 1916 (Comp. St. 1916, §§ 6336%a-6336y2m), is not a tax on the individual legacies, nor on the right of the individual legatees to receive them, measured by the entire net estate, but on the right of decedent to have the estate pass by will or intestacy.</p> <p>3. Internal revenue <©=>2 — Inheritance tax is valid, though imposed on WHOLE ESTATE.</p> <p>Though there is a distinction between a tax on the interest to which a person succeeds on the death of another and a tax on the interest which ceased by reason of the death, there is no distinction as to the power of Congress to impose the tax under Const, art. 1, § 8.</p> <p>4. Internal revenue <@=»2 — Inheritance tax not invalid as tax on state INSTRUMENTALITIES.</p> <p>Though the inheritance tax imposed by Act Sept. 8, 1916 (Comp. St. 1916, §.§ 6336%a-6336%m), is an estate tax rather than a legacy tax, it is not unconstitutional as a tax on the probate instrumentalities of the state.</p> <p>5. Statutes ®=»245 — Departmental change of interpretation does not re-</p> <p>quire APPLICATION OF RULE THAT DOUBT SHOULD BE RESOLVED IN FAVOR OF TAXPAYER.</p> <p>While doubts in a taxing statute are to be resolved in favor of the taxpayer, the mere fact that the Treasury Department changed its original interpretation of Act Sept. 8, 1916, § 203 (Comp. St. § 6336%d), as to the right to deduct state inheritance taxes in computing the inheritance tax thereby imposed, does not show such ambiguity as requires the application of this rule of construction.</p> <p>6. Internal revenue <©=8 — In computing inheritance tax, state tax -imposed ON INDIVIDUAL SHARES CANNOT BE DEDUCTED.</p> <p>Under Act Sept. 8, 1916, § 203 (Comp. St § 6336Yd), providing for the deduction from the gross amount of any estate taxable thereunder of such charges against the estate as are allowed by the law of the jurisdiction, it is only such charges as affect the estate as a whole that may he deducted, and state inheritance taxes levied on the shares received by the beneficiaries cannot be deducted, though the duty is imposed on the executor or administrator to pay the taxes.</p>

In Admiralty. Libel by a subcharterer of the Lysefjord, against the Atlantic Lruit Company, in which other parties were brought in. On exceptions to a cross-libel filed by the owners against the Tropical Fruit Company.

<p>Appeal from Decision of Commissioner of Patents.</p> <p>Interference proceeding in the Patent Office between the R. M. Hollingshead Company and the Area Manufacturing Company. Prom a decision awarding priority to the last-named company, the R. M. IIollingshead Company appeals.</p>

<p>1. Trial <@=>260(1) — Refusing requests® instructions covered by general CHARGE NOT REVERSIBLE ERROR.</p> <p>Refusing reguested instructions fully and accurately covered in the general charge is not reversible error.</p> <p>2. Master and servant <@=>89(1) — Assisting to move wagon within laborer’s CONTRACT OF EMPLOYMENT.</p> <p>A laborer, who was hired to help around tanks and machinery being installed in a gas plant and to do what his foreman directed, and who was injured when assisting to move a wagon from which a tank had been removed, was within the course of his employment.</p> <p>3. Master and servant <@=>155(1) — Warning unnecessary where task is SIMPLE AND DANGER OBVIOUS.</p> <p>Where an employé was assisting to move a wagon by hauling on the tongue, and a wagon wheel struck an obstruction swinging the tongue against him, the defense of assumed risk cannot be defeated on the ground that employer gave no warning of the danger, since there is no duty to warn, where the duty is simple and any danger is obvious.</p>

<p>1. Statutes <©=>225 — Rule oe pari materia applicable only where meaning is doubtful.</p> <p>The rule of pari materia is applicable only where a statute is ambiguous or its significance doubtful.</p> <p>2. Intoxicating liquors <©=>247 — Intoxicants introduced in violation of Reed Amendment not subject to forfeiture under Sheppard Act.</p> <p>Intoxicants brought into the District contrary to the Reed Amendment (Comp. St 1918, Comp. St. Ann. Supp. 1919, §§ 8739a, 10387a-10387c), which provides a fine or imprisonment, or both, for its violation, are not subject to forfeiture under the Sheppard Act (Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ 3421i,4a-3421%s), providing for the forfeiture of intoxicants illegally received, possessed, etc., since the statutes are independent, and the Reed Amendment clearly defines the punishment which shall be inflicted for its violation.</p>

Action by Salvatore Sealco against the District of Columbia, a municipal corporation, and Edwin B. Hesse, Chief and Property Clerk of the Metropolitan Police of the District of Columbia. Judgment for plaintiff, and defendants-appeal.

Mandamus proceeding by the United States, on the relation of Dan C. McDonald and others, against Franklin K. Dane, Secretary of the Interior, and Clay Tallman, Commissioner of the General Dand Office. From a judgment dismissing the petition, relators appeal.

Suit by G. R. Lee Cole against Minnie B. Cole and others. From a decree dismissing the bill and cross-bill, plaintiff appeals.

<p>1. Fraudulent conveyances <©=>278(2) — Wife, to whom debtor conveys PROPERTY, MUST PROVEI RIGHT THERETO.</p> <p>Where a debtor conveys all his property to his wife, the burden is on her to prove distinctly and satisfactorily her right thereto.</p> <p>2. Fraudulent conveyances <@=>104(1) — Conveyance to wife viewed with suspicion and requires close scrutiny.</p> <p>A conveyance by a debtor of all his property to his wife is viewed by the law with grave suspicion, and requires close scrutiny at the hands of a court of equity.</p> <p>3. Husband and wife <@=>133(7) — Evidence! insufficient to show property WAS PURCHASED WITH MONEY OF DEBTOR’S WIFE.</p> <p>In a suit to set aside a conveyance by a debtor to his wife of his only property, evidence held insufficient to show that the property was paid for with her money.</p> <p>4. Evidence <@=>77(1) — Failure to call witnesses claimed to have knowledge: RAISES UNFAVORABLE PRESUMPTION.</p> <p>Where a party has it in his power to call certain witnesses who, he claims, are familiar with the subject being investigated, and fails to do so, tliore is a presumption that their testimony, if called, would not be favorable to his case.</p> <p>5. Fraudulent conveyances <@=>64(2) — Debtor charged with intent to defraud, WHERE NATURAL CONSEQUENCE OF CONVEYANCE.</p> <p>As the natural and probable consequence of a conveyance by a debtor to his wife of the only property owned by him at the time was to delay, hinder, and defraud a creditor, ho must be held to have so intended.</p>

<p>Appeal from the Supreme Court of the District of Columbia.</p> <p>Suit by the Southern Pacific Railroad Company against Franklin K. Dane, Secretary of the Interior, and another. From a judgment-dismissing the bill, plaintiff appeals.</p>

<p>1. Patents <@=>183 — Knowledge of applicant's assignee imputed to applicant.</p> <p>Where a patent will inure to the benefit of a party purchasing the rights of the applicant, its knowledge of a conflicting invention must be imputed to him, and its activity in filing the application is his activity.</p> <p>2. Patents <@=>90(3) — Inventob, junking device and delaying giving it to PUBLIC, LOST BIGHT TO PBIOBITY.</p> <p>Where an inventor, after reducing his invention to practice, junked his device and delayed for two years in taking steps to give it to the public, he lost his right to priority over another inventor, who in the meantime had reduced his invention, to practice and applied for a patent.</p> <p>3. Patents <@=>87 — Abandonment of invention may be infebbed fbom conduct.</p> <p>While abandonment of an invention by the inventor must bo sustained by convincing proof, if his conduct discloses an intention to pursue the matter no further, abandonment may be inferred.</p> <p>4. Patents <@=>87 — Evidence held to show abandonment of invention.</p> <p>Evidence in an interference proceeding held to show that the delay of the junior party in filing his application was not due to lack of funds, but to abandonment of the invention.</p>

<p>1. Trade-marks and trade-names <3=23 — Right is independent of statute.</p> <p>The right to a trade-mark exists independently of statute.</p> <p>2. Trade-marks and teade-names <3=45 — Registration is only piuma facie EVIDENCE.</p> <p>Registration of a trade-mark simply constitutes prima facie evidence that the registrant is entitled to the mark.</p> <p>3. Trade-marks and trade-names <3=21 — Use insufficient as against one SUBSEQUENTLY COMMENCING CONTINUOUS USE.</p> <p>Where a party having no established place of business made some sample boxes of toilet powder, placed upon them a mark claimed by him as a trade-mark, and forwarded them, without previous request, through the house for which he was working, to dealers in goods of that character, who paid 5 cents for each box, though the usual selling price of such article was about 50 cents, and he made no further use of the mark for two years, his use thereof did not satisfy the statute, and entitle him to priority over a party subsequently commencing the continuous use of an interfering mark.</p> <p>4. Trade-marks and trade-names <3=44 — Appellant cannot complain that priority should have been awarded to third party.</p> <p>In a trade-mark interference proceeding between three parties, the appellant cannot complain of a decision awarding priority to one of the other parties, on the ground that priority should have been awarded to the third party.</p> <p>5. Trade-marks and trade-names <3=14 — On appeal to Assistant Commissioner, ERROR AGAINST PARTY NOT APPEALING NOT AVAILABLE.</p> <p>Where, after priority was awarded to one of the parties to an interference proceeding, he filed a motion to have it adjudged that the adverse party was not entitled to use the mark at the date of his application, but did not appeal from the refusal of such motion, the refusal was not before the Assistant Commissioner of Patents on an appeal by the adverse party, and he committed error in overruling such refusal.</p> <p>Robb, Associate Justice, dissenting in part.</p>

Interference proceeding in the Patent Office between Francis D. Shenk and another and Emerson L. Clark. From a decision awarding priority to Clark, the other parties appeal.

<p>Appeal from a Decision of an Assistant Commissioner of Patents. Patent application by Webster M. Roberts. From a decision of the Patent Office, adverse to the applicant, he appeals.</p>

<p>Appeal from a Decision of an Assistant Commissioner of Patents. Application by George PI. Schafer & Co., for registration of a trademark, opposed by William Waltke & Co. From a decision granting registration, the opposing party appeals.</p>

<p>1. I’atents <§=>91 (4) — Evidence held to show that patentee was inventos OB subject ob interference.</p> <p>In an interference proceeding between a patentee of relays of the gaseous typo, known as atidions, who applied for a patent on an improvement consisting of means for preventing the instrument from becoming inoperative under certain conditions, and one obtaining a patent for the same improvement, evidence held to show that the first patentee was the original inventor of the matter involved, and disclosed the invention at a demonstration of his instrument at which the subsequent patentee was present.</p> <p>2. Patents <®=»113(6) — Claims involved in interference cannot be narrowed on appeal to meet exigencies.</p> <p>Where the claims of a patent application involved in an interference proceeding aro broad and general, they cannot be given a narrower interpretation on appeal to meet the exigencies of the case.</p> <p>Smyth, Chief Justice, dissenting.</p>

<p>Appeal from a Decision of the Commissioner of Patents.</p> <p>Two interference proceedings in the Patent Office between Albert V. T. Day and Abram L. Bower. From decisions granting priority to Day as to some counts and denying him priority as to others, he appeals.</p>

<p>In Error to the District Court of the United States for the Western District of Louisiana; George W. Jack, Judge.</p> <p>Criminal prosecution by the United States against Gould Collins. Judgment of conviction, and defendant brings error.</p>

Ervin, Judge. Libel by the Seaboard Transportation & Shipping Company against the Atlantic, Gulf & Pacific 'Company, claimant of the dredgeboat Pensacola. From a decree for an insufficient amount, the libelant appeals,, and the claimant and its surety file a cross-appeal.

<p>In Error to the District Court of the United States for the Eastern District of Pennsylvania; Oliver B. Dickinson, Judge.</p> <p>Action by Real Estate Title Insurance & Trust Company against Ephraim Eederer, Collector of Internal Revenue for the First District of Pennsylvania. Judgment for defendant, and plaintiff brings error.</p>

Dickinson, Judge. Action by the Germantown Trust Company against Ephraim Eederer, collector of internal revenue for the First District of Pennsylvania. Judgment for defendant, and plaintiff brings error.

<p>Appeal from the District Court of the United States for the District of North Dakota; Charles F. Amidon, Judge.</p> <p>Suit by the Advance-Rumley Thresher Company against H. H. Bailes for cancellation of a deed. Decree for plaintiff, and defendant appeals.</p>

Orr, Judge. Petition by Anna J. Burnett for proceeds of sale of property, opposed by Elliott Frederick, trustee in bankruptcy of the Arcade Drug-Company. From an order denying the petition, petitioner appeals.

<p>1. Internal revenue <§=^>47 — Evidence held to sustain conviction oe illicit LIQUOR DEALER.</p> <p>On trial of defendant, charged with carrying on the business of retail liquor dealer without having first paid the special tax therefor, evidence of a sale of whisky in defendant’s place of business and in his iiresence, and that shortly afterwards, on search, nearly 50 cases of whisky were found in the room, held sufficient to sustain conviction.</p> <p>2. Criminal law e©=>359 — In prosecution oe illicit liquor dealer, evidence AS TO ARREST OE CLERK WHO MADE SALE IRRELEVANT.</p> <p>On trial of defendant for carrying on business of retail liquor dealer without payment of special tax therefor, evidence of arrest by state authorities of his clerk, who actually made the sale on which the charge was based, held properly excluded as irrelevant.</p> <p>3. Internal revenue <@^47 — Failure to prove that defendant did not have A TAX PAID STAMP NOT REVERSIBLE ERROR.</p> <p>Failure of prosecution to prove that defendant, charged with carrying on business of retail liquor dealer without payment of special tax, did not have a tax-paid stamp, held not ground for reversal.</p> <p>4. Criminal law @=>323(2) — Comments of judge on evidence not erbob, WHERE CORRECTED BY OTHER INSTRUCTIONS.</p> <p>Comments in the charge by the judge on the evidence in a criminal case held not reversible error, where he expressly instructed the jury that they should act only on their own impression and judgment as to its weight.</p>

<p>1. Contracts <@=>350(2) — Evidence held to show contract to repair engine FOR reasonable value of work.</p> <p>In a suit in admiralty to recover an amount duo for repairs to an engine, evidence held to show that the agreement was the same the law would imply if no price had been fixed, to do the work for the reasonable value, or the actual cost of labor and material with a reasonable profit added.</p> <p>2. Contracts <@=>229(2) — Under contract to repair foe cost plus reasonable PROMT, ALLOWANCE FOR OVERHEAD CHARGES PROPERLY DENIED.</p> <p>In a suit on a contract for the repair of an engine for the reasonable value of the work and material plus a reasonable profit, where the court held the libelants entitled to a profit of 15 jier cent, it properly directed the master to disregard the investment in machinery and plant and overhead charges; the 15 per cent, profit covering these items.</p> <p>3. Appeal and error <@=>931(10) — Finding of master, approved by court, PRESUMED .CORRECT.</p> <p>Finding of the master, approved by the District Judge, as to the amount due under a contract, is iiresumed correct.</p> <p>4. Contracts <@=231 — Proper offsets in' action on contract to repair for cost imus reasonable profit stated.</p> <p>In a suit for the amount due under a contract to repair the engine of a tug, but not to install it, for the cost of the work and materials plus a reasonable profit, anything expended to correct defects in the work was a proper offset, but not amounts expended to correct the faulty installation of the engine by other parties, or the amount expended for appliances which the libelants did not furnish or charge for.</p>

<p>1. Criminal law <@=>1156(1) — Ruling as to new trial discretionary, and NOT REVIEW ABLE.</p> <p>The granting or refusal of a motion for a new trial is discretionary with the trial court, and will not be reviewed.</p> <p>2. Criminal law <@=>1121(2) — Denial of instructed verdict not review- . ABLE, IN ABSENCE OF EVIDENCE.</p> <p>The overruling of a motion by defendant for an instructed verdict will not be reviewed, where the entire evidence has not been brought up.</p> <p>3. Criminal law <@=>1044, 1054 (1) — Admission of evidence not review able, WITHOUT MOTION TO STRIKE OUT AND EXCEPTION.</p> <p>The admission of testimony could not he reviewed, where defendant did not complain of the testimony, ask the court to strike it out, and reserve an exception to the court’s action thereon.</p> <p>4. Criminal law <@=>472 — Expert testimony as to proper method of treating narcotic addicts admissible.</p> <p>On’the trial of a physician for illegally dispensing drugs, in violation of the Harrison Anti-Narcotic Act (Comp. St. §§ 6287g-6287q), the testimony of experts as to the proper method recognized by the medical profession for the treatment of narcotic addicts was admissible on the issue of whether the drug was dispensed in the legitimate course of defendant’s practice as a physician. .</p> <p>5. Poisons ©=>9 — Indictment charging physician with dispensing forbidden DRUGS HELD SUFFICIENT,</p> <p>An indictment charging a registered physician with selling and dispensing morphine sulphate in violation' of the Harrison Anti-Narcotic Act (Comp. St. §§ (>287g-6287q), which negatived the exceptions contained in .the statute, held sufficient.</p> <p>6. Poisons <@=>2 — Physicians may dispense opium only as permitted by STATUTE.</p> <p>A practicing physician is not authorized, under the Harrison Anti-Narcotic Act (Comp. St. §§ 6287g-(>2S7q), to sell or dispense opium or its derivatives in any manner other than in the course of his professional practice or in the ways laid down in the statute.</p>

Suit by the Curacao Trading Company (Curacaosche Handel Maatschappij) against Carl Bjorge, master and claimant of the steamship Crathcus and others. Decree for respondents, and libelant appeals.

<p>Appeal from the District Court of the United States for the Southern District of Texas; Joseph C. Hutcheson, Jr., Judge.</p> <p>Action by J. W. Blower, receiver of the Ohio & Texas Sugar Company, against S. A. Robertson and others. From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from the District Court bf the United States for the Eastern District of Virginia, at Richmond; Edmund Waddill, Jr., Judge.</p> <p>Suit by the Duckett-Wake Tobacco Company against Joseph A. Dart, doing business as the Dart Tobacco Company. From a decree for plaintiff, defendant appeals.</p>

<p>1. Use and occupation <§=>1 — Not maintainable unless tenancy exists.</p> <p>Where the rule has not been changed by statute, an action for use and occupation is not maintainable, unless the relation of landlord and tenant exists.</p> <p>2. Use and occupation <®=8 — Plea of payment raises implied promise to pay.</p> <p>In an action for use and occupation, a plea of payment is sufficient to raise an implied promise to pay as tenant, and establish the relation of landlord and tenant.</p> <p>3. Trespass <§=>40 (1) — Complaint construed to state cause of action for MESNE PROFITS.</p> <p>A complaint alleging that defendant went on described tracts of. land constituting Indian’s allotments, held in trust, and inclosed, used, and occupied them, and appropriated the grass, without the consent of the allottee or the Secretary of the Interior, and without any lease or contract, and without paying anything for the use of the land, stated a cause of action in trespass for mesne profits.</p> <p>4. Trespass <®^»53 — Rental value measure of mesne profits.</p> <p>In an action of trespass for mesne profits the reasonable rental value may measure the damages to be recov erect</p> <p>5. Use and occupation <2s»10 — Value recoverable undeb statute, though PROPERTY WRONGFULLY HELD.</p> <p>Under Rev. Laws Okl. 1910, § 2873, providing for the recovery of the value of the use of land during wrongful occupation, such recovery may be had, where the relief sought is expressly based on the value for use and occupation.</p> <p>6. Indians c=>27 (1) — Government may maintain trespass in behalf of allottees WHOSE LANDS ARE HELD IN TRUST.</p> <p>The United States may maintain an action in trespass for mesne profits as to Indian allotments held in trust by the United States on behalf of the allottees.</p>

<p>Bankruptcy <§=»303(3) — Evidence held to show mortgage fraudulent.</p> <p>In suit by bankruptcy trustee, evidence hold to show mortgage by bankrupt was partially invalid as fraudulent as to creditors under Bankruptcy Act, § 67e (Comp. St. § 9651).</p>

<p>1. Bankruptcy t@=»228 — Findings of referee presumptively correct.</p> <p>Findings of fact by a referee should not be disturbed, except where it is plainly demonstrated that a mistake has been made.</p> <p>2. Bankruptcy i§=>186(2) — Bankrupt entitled to show cause before commitment FOR CONTEMPT.</p> <p>On failure of a bankrupt to comply with an order to turn over money or property to his trustee within the time limited, he should be cited to show cause before being committed for contempt.</p>

<p>Appeal from the District Court of the United States for the District of Indiana.</p> <p>Suit by the Deister Machine Company against the Deister Concentrator Company. Decree for plaintiff, and defendant appeals.</p>

Suit in equity by the Read Manufacturing Company against the Hobart Manufacturing Company, for infringement of letters patent No. 966,765. Decree for complainant, and defendant appeals.

<p>1. Patents «=>288 — Making tart of article an “act of infringement,” within act relating to district of suit.</p> <p>A defendant which, within the district of suit, made a part of an infringing article, which, when joined to another part made in another district, for which it was intended, completed such article held to have committed acts of infringement within the district, within the meaning of Judicial Code, § 48 (Comp. St. § 1030), and subject to suit therein.</p> <p>2. Patents ©=>288 — Appearance and answer waiver of objection to jurisdiction.</p> <p>A defendant in an infringinent suit, which was served, appeared, answered, and defended, until complainant rested on its prima facie case, held to have waived objection to jurisdiction in that district.</p> <p>3. Patents ©=>328 — For artificial tooth crown valid and infringed.</p> <p>The Davis patent, No. 762,289, for an artificial crown for a tooth, claim 1, held valid, and defendant held chargeable with contributory infringement in making facings which, when joined to backings made by another, which was intended, constitute the article of the patent.</p>

<p>In Equity. Suit by Daniel B. Luten against Chasteen F. Scott and the Illinois Concrete Machinery Company.</p> <p>Decree for defendants.</p>

<p>1. Customs duties <§=^134 — Indictment foe smuggling and concealing sufficiently DESCRIBED PROPERTY AS WHISKY.</p> <p>An indictment ior smuggling, and for receiving, and facilitating the transportation, concealment, and sale of, smuggled merchandise, is sufficient, where it describes the merchandise as four bottles of whisky.</p> <p>2. Customs duties <®=»134 — Indictment need not describe smuggled goods as described in tariff schedule.</p> <p>Under Rev. St § 3082 (Comp. St. § 5785), it is not necessary to describe smuggled merchandise in an indictment by the name under which it is described in, the tariff schedule.</p> <p>3. Customs duties <@=»121 — Whisky may be lawfully imported, and smuggling is punishable; “commodity of merchandise.”</p> <p>Under Act Oct. 3. 1917, § 801 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 8739b), Act Nov. 21, 3918, § 4, and Act Feb. 24, 1919, § 601 (Comp. St. Ann. Supp. 1919, § 8739bb), whisky may be lawfully imported, and is therefore a “commodity of merchandise,” embraced within the commercial regulations,, and its smuggling is punishable.</p>

<p>Commerce <§=>89 — Suit to enjoin cancellation oe classification maintainable WITHOUT RESORT TO INTERSTATE COMMERCE COMMISSION.</p> <p>Under Act Feb. 4, 1887, § 1, as amended (Comp. St. § 8503, subd. 4), as to the duty of common carriers subject to that act, a suit may be maintained, without first resorting to the Interstate Commerce Commission, to restrain carriers from putting into effect a supplement to their freight classifications whereby the classification under, which a commodity has been carried for years is canceled, and the commodity is included among articles not accepted for transportation, as no question of reasonableness of classifications, etc., is involved.</p>

<p>1. Wharves •®=20(3, 5) — Owner of berth and of vessel both in fault for INJURY OF STEAMER.</p> <p>Owner of a harbor berth, in which it had dumped cinders, forming a dangerous ridge under water, and which rented the berth for mooring a steamer during the winter without warning of the danger, and the owner of the boat, who if he did not know of the ridge could have discovered it by ordinary care, both held in fault, and liable for loss of the boat by being broken on the ridge, where it was forced by high water and held by ice until the water sank.</p> <p>2. Wharves <§=>20(7) — Measure of value of steamer fixed by ALLpwiNG FOR ANNUAL DEPRECIATION.</p> <p>The value of a steamer, which was sunk at a wharf, with total loss, where the evidence was conflicting, fixed by deducting from her original cost 10 per cent, each year for depreciation.</p>

<p>•1. Waters and water courses <§=>222 — -Charge against land within reclamation PROJECT TO BE FINALLY DETERMINED BEFORE CONSTRUCTION.</p> <p>Under Reclamation Act June 17, 1902, § 4 (Comp. St. § 4703), providing , that the Secretary of the Interior may let contracts for the construction of a project and thereupon shall give notice of the lands irrigable, the limit of area per entry, and of the charges which shall be made per acre upon such entries, which shall be determined with a, view of returning to the reclamation fund the estimated cost of construction, the cost is to be estimated and apportioned before construction, and in case of settlement under such conditions the price cannot be later increased, though the published estimate is insufficient to cover the actual cost.</p> <p>2. Waters and water courses <§=>222 — Estimate and apportionment of cost OF RECLAMATION project waived, where it was agreed that settlers WOULD REIMBURSE GOVERNMENT FOR ACTUAL COST.</p> <p>The requirement of Reclamation Act June 17, 1902, § 4 (Comp. St. § 4703), that the cost of a project shall be estimated and apportioned before construction, may be waived by settlers and the Secretary of the Interior, and was waived) where there was no formal compliance with such requirement and all parties understood that ultimately the settlers would reimburse the government for its actual and necessary outlay.</p> <p>3. Waters and water courses <@=>222 — Settlers on reclamation project CONSTRUCTED UNDER MUTUAL UNDERSTANDING THAT SETTLERS WOULD REIMBURSE GOVERNMENT WERE CHARGEABLE ONLY WITH ACTUAL COST.</p> <p>Where, instead of estimating and apportioning the cost of a reclamation project before construction, it was mutually understood that the settlers would reimburse the government for the actual cost, they were chargeable with the actual cost only, and the Secretary of the Interior was without discretion in fixing the charge.</p> <p>4. Waters and water courses @=222 — Cost of reclamation project chargeable against SETTLERS MATTER FOR JUDICIAL DETERMINATION.</p> <p>Where a reclamation project was constructed under a mutual understanding that settlors would reimburse the government for the actual cost, the actual cost of the project was a matter for judicial investigation and determination.</p> <p>5. Waters and water courses @=222 — Directors of association of water USERS OF RECLAMATION PROJECT AUTHORIZED TO RELEASE IRRIGATION DISTRICTS FROM OBLIGATION TO TAKE WATER.</p> <p>Where irrigation districts subscribed for stock in an association o£ water users on a reclamation project entitling them to water, the board of directors and the Secretary of the Interior held authorized to release the irrigation districts from their subscriptions and obligations to take water.</p> <p>6. Waters and water courses @=222 — -Members of water users’ association OF RECLAMATION PROJECT BARRED BY LACHES FROM ATTACKING RELEASE BY DIRECTORS.</p> <p>Where an irrigation district subscribing to stock in an association of water users on a reclamation project was released from its obligations by the association’s board of directors, and though the other subscribers’ learned thereof within a reasonable time no action to sot aside the release was brought for several years during which the district landowners ceased to exercise any rights as stockholders and were not recognized as such, and the district issued bonds by means of which it procured oiher water, and lands in the district were bought and sold and transfers thereof made, the members of the association were chargeable with laches preventing them from attacking the release in equity.</p> <p>7. Waters and water courses @=222 — Cost of reclamation project held TO EMBRACE CERTAIN DRAINAGE WORK.</p> <p>Where a reclamation project was constructed under a mutual understanding that the actual cost should he charged against settlers, the cost of drainage work done for the benefit of lands in the project, or to protect other lands from conditions resulting from the construction and operation of the project, was chargeable against the project lands.</p> <p>8. Waters and water courses @=222 — Settlers on reclamation project PAYING GREATER PRICE TO COVER FAILURE OF OTHERS TO TAKE WATER ENTITLED TO ADDITIONAL WATER.</p> <p>Where landowners within a reclamation project outside of an irrigation district are charged 880 per acre, while those within the district are charged only $70, because of the possibility that all those outside the district will not take water, those paying such higher price are entitled to the additional service for which they pay, and, if seven-eighths of the acreage takes water, they are entitled, to the water rights for the entire acreage.</p> <p>9. Waters and water courses @=222 — Requiring grant of rights of way AS CONDITION FOR OBTAINING WATER FROM RECLAMATION PROJECT HELD UNLAWFUL.</p> <p>Sett lers on lands within a reclamation project could not be required as a condition of obtaining- water to make a floating grant in perpetuity, not only to the government but to its successors in control of the project, of rigid s of way for the construction, maintenance, and operation of ditches, canals, flumes, etc., even though the patents for the lands were issued prior to Act August 30, 1890, requiring patents to reserve a light of way for the ditches or canals constructed by the United Stales.</p> <p>10. Waters and, water courses @=222 — -Application for water under reclamation PROJECT TOO INDEFINITE.</p> <p>An application for water for land in a reclamation project, providing that the measure of the water right was that quantity of water which should be beneficially used for irrigation, not exceeding the share proportionate- to irrigable acreage of the water available as determined by the project manager or other proper officer during the irrigation season for the irrigation of lands under the land unit, did not authorize the project manager or other officer to decide whether a landowner needed water, but only to determine the amount of water actually available, but was too indefinite, and landowners could not be required to execute it as a condition of obtaining water.</p> <p>11. Waters and water courses @=^222 — Secretary of Interior not vested</p> <p>WITH UNLIMITED POWER TO DETERMINE CONDITIONS OF PURCHASE OF WATER FROM RECLAMATION PROJECT.</p> <p>Whatever may be the extent of the discretion of the Secretary of the. Interior in the case of a reclamation project, where the charge for water and conditions of purchase are announced in advance of construction as required by statute, he could not exercise unlimited power to determine the conditions on which water would be supplied, where the project was constructed under the mutual understanding that landowners might procure water by paying their ratable proportion of the cost of construction and submitting to other equal and reasonable conditions.</p> <p>'12. Waters and water courses @=>222 — Rights of landowners on reclamation PROJECT STATED.</p> <p>Where a reclamation project was constructed with the mutual understanding that settlers would reimburse the government for the actual outlay, and contracts had been made to supply irrigation districts and others with water, settlers were entitled to some authoritative description of the property to which their rights related, and a definition of the extent of their interest in the project, before they could be required to pay and to have from an authoritative source and of record a declaration of the cost of the project and of the portion of which it was intended they should become the beneficial owners, and could be required to pay the cost only of such portion of the works, or such interest therein as was set apart for the use of their lands.</p>

<p>1. Insurance <3^777 — Benefit society alone may raise objection to designated BENEFICIARY BASED ON BY-LAWS.</p> <p>A benefit society alone can raise the objection that the beneficiary designated in a certificate does not come within the class who may be designated under its by-laws.</p> <p>2. Insurance <g=s777 — Benefit society waives objection to beneficiary by INTERPLEADING CLAIMANTS.</p> <p>A benefit society, by depositing the fund in court under a bill of inter-pleader, waived its right to question the claim of insured’s divorced wife under a certificate designating her as beneficiary, on the ground that by its by-laws such designation ceased when the divorce was obtained, where by the laws of the state of its organization, and of the state in which the member lived, such designation was proper.</p> <p>8. Insurance <S=s>770 — 'Divorced wife entitled to benefit under certificate DESIGNATING IIES AS BENEFICIARY.</p> <p>Where a benefit fraternity organized in Massachusetts issued a certificate to a resident of New York, designating Ms wife as beneficiary, and</p> <p>. she obtained a divorce, but still received sums from him for maintenance, neither the statutes of Massachusetts nor those of New York defeated her right to tlie benefit in favor of his next of kin.</p>

<p>1 Insurance <@=>448, 585(1) — Joint policy on two lives held enforceable only by survivor.</p> <p>A policy of insurance on the lives of two persons, the amount of the policy being payable on the death of either to the survivor, is enforceable only in accordance with its terms, and the fact that one of the insured, by the murder of the other, has disqualified himself from recovery, does not. vest a right of action in the personal representative of the deceased.</p> <p>2. Insurance <@=>156(1) — Policy on joint lives imposes mutual obligations.</p> <p>Under a policy of insurance on the lives of two persons, the amount of the policy being payable on the death of either to the survivor, each insured became bound by the conduct of the other, and both obligate themselves for the performance of the whole undertaking.</p> <p>3. Insurance <@=>146(2) — Policy measures rights of all parties.</p> <p>The policy is the measure of the right of everybody under it, and such rights should be construed according to the “four corners of the contract.’</p> <p>4. Insurance ©=3448 — When public policy bars recovery of joint policy ON LIVES OF HUSBAND AND WIFE.</p> <p>Where, under a state statute (Code Ala. 1907, § 3765), the husband inherits one-half of the personal estate of his deceased wife, it is doubtful that, the rule of public policy adhered to in the federal court would sanction any recovery by her personal representative oil a policy of insurance on the joint lives of husband and wife, whore the wife had been murdered by the husband.</p>

At Law. Action by Leo L. Covey against the United States. On defendant’s motion to strike parts of count 1 of the petition, and on demurrer to count 2.

At Law. Action by J. Walter Farrell, Charles Weil, Sumner S. Weil, and John McKey, trading as Weil, Farrell & Co., against the First National Bank of Philadelphia. Upon rule for judgment for want of a sufficient affidavit of defense.

<p>Criminal prosecution by the United States against Anna Louise Strong. On demurrer to indictment.</p>

<p>War <@=?>4 — Indictment under Espionage Act held not to charge opeense.</p> <p>Ah indictment for publishing articles intended to bring the form of government, the Constitution, and the uniform of the army into contempt, scorn, and contumely, and to incite resistance to the United States when at war, in' violation of Espionage Act, § 3, as amended by Act May 10, 1918, § 1 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 10212c), hold not to state an offense in any count.</p>

<p>Criminal prosecution by the United States against E. B. Ault, George P. Listman, P. A. Rust, Anna Louise Strong, and the Seattle Union Record Publishing Company, Inc.</p>

<p>Criminal prosecution by the United States against William Hill. On motion for new trial.</p>

<p>Appeal from a Decision of an Assistant Commissioner of Patents. Patent application by Isaac S. Dement. Prom a decision of the Patent Office, rejecting certain claims of the application, the applicant appeals.</p>

Action by David K. Kahaulelio against Beke Ihihi and another. A judgment for plaintiff was affirmed by the Supreme Court of Hawaii, and defendants bring error.

<p>1. Deeds @=>124(3) — Habendum clause held not to change estate from fee TO LIFE INTEREST.</p> <p>A deed to land in Kentucky, in which both tho granting and warranty clauses purported to convey an estate in fee, held to convey the fee, although the habendum clause was to tho grantee during his natural life, and at his death to bo equally divided among his heirs, on the ground that the Intention was that (lie heirs should take by descent, and not by purchase.</p> <p>2. Vendor and purchaser @=>232(1)- — Grantee of minerals charged with NOTICE OF RIGHTS OF OCCUPANTS OF LAND.</p> <p>A grantee of mineral lands held charged with constructive notice of the rights of other persons then in possession of and living on the land, claiming under deeds without mineral reservations, which were recorded, to the extent of the boundaries described in such deeds.</p> <p>3. Estoppel @=>70(1) — Facts insufficient to create.</p> <p>A finding by the trial court that owners of land then in possession were not estopped, by standing by without claiming title, to deny the effectiveness of a conveyance by others of the mineral rights therein, affirmed.</p>

<p>In Error to the District Court of the United States for the District of Massachusetts; James M. Morton, Judge.</p> <p>Criminal prosecution by the United States against Harmon P. Mac-Knight. Judgment of conviction, and defendant brings error.</p>

Hollister, Judge._____ Supplemental and ancillary bill by Ulrica D. Pierce, trustee tinder the will of Samuel F. Vinton, deceased, against John V. Dahlgren, Jr., and others. From an order of the District Court, John V. Dahlgren, Jr., appeals.

Suit by the Minnesota Mutual Investment Company against Victor C. McGirr, in which Ross E. McGirr filed an intervening petition. From the decree, plaintiff appeals, and defendant and the intervener also appeal. Reversed and remanded, with directions.

Mandamus by the United States, on the relation of Prank Pierce, against H. W. Cargill, as Assessor of Van Burén County, and others. Judgment for defendants (258 Fed. 458), and the relator brings error.

Mandamus by tbe United States, on the relation of Andrew Jensen, against J. R. Criner, as Assessor of Newton County, and others. Judgment for defendants, and the relator brings error.

C. Hutcheson, Jr., Judge. Suit by the Texas & Gulf Steamship Company against Clarence Parker, in which Hill, Cook & Pope, a corporation, intervened. Prom a decree in favor of defendant and intervener, plaintiff appeals.

Ervin, Judge. Libel by the Texas Company against the Texas & Gulf Steamship Company, claimant of the barge Colonel Moore, and others. From a decree for an insufficient amount, the libelant appeals.

<p>1. Counties <§=168(1) — Implied trust in favor of buyer of warrants AGAINST SELLER, WHO ACQUIRED WARRANTS ISSUED IN LTEU OF THOSE SOLD.</p> <p>Where county warrants were issued to a creditor to replace former warrants. which the creditor had pledged, and the creditor, after redeeming the pledged warrants, instead of surrendering them to the county, redelivered them to the pledgee, the latter held them in trust for the buyer of the later warrants, and the buyer acquired the beneficial interest in the funds raised by the county to pay the debt.</p> <p>2. Courts <§=208 — Implied trust in county warrants is equitable claim to property, entitling party to sue in district in which county is SITUATED.</p> <p>The buyer of county warrants issued in lieu of former warrants, which acquired an implied trust in the former warrants, has a beneficial interest in the funds raised by the county to pay the warrants, which entitles it to bring suit in the district in which the county is situated, and serve notice by publication on the nonresident defendants, under Judicial Code, § 57 (Comp. St. § 1039).</p>

Action by Charles M. Poague and Arthur W- Tobias, surviving partners of the firm composed of McKey, Poague, and Tobias, against Watson P. Davidson. Judgment for plaintiffs, -and defendant brings error.

<p>In Error to the District Court of the United States for the Eastern District of Michigan; Arthur J. Tuttle, Judge.</p> <p>Criminal prosecution by the United States against Harry Nichamin. Judgment of conviction, and defendant brings error.</p>

Petition to Review and Revise an Order of the District Court of the United States for the Eastern Division of the Northern District of Illinois. Proceeding on the claim of Julius E. Smietanka, Collector of Internal Revenue, against the estate of Eli I. Jacobson, opposed by William E. Zibell, receiver in bankruptcy. On petition to review and revise an order denying the claim of priority.

Rib el filed by George I. Forsyth and others against the steamship Ancon, her engines, etc.; the Panama Railroad, Company, Claimant. Decree dismissing the libel. Ribelants appeal.

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>Action hy Abraham Nitke, doing business as the Nitke 'Leather Goods Company, against the Warren Leather Goods Company. Judgment for defendant, and plaintiff brings error.</p>

<p>Bankruptcy <©=>308 — Surety can prove claim only by subrogation to right OF CREDITOR.</p> <p>That surety on note of bankrupt also secured same by mortgage on his property does not give him greater rights in estate of bankrupt, and he can only participate therein by subrogation to rights of creditor, in case latter fails to prove claim, to extent that he has discharged debt, under Bankruptcy Act, § 571 (Oomp. St. § 9641).</p>

<p>Appeal from the District Court of the United States for the District of Massachusetts; James M. Morton, Jr., Judge.</p> <p>Habeas corpus by Sarah Chandler Shapley, by her next friend, James A. Keown, against Elisha ?T. Cohoon. From a decree of dismissal, petitioner appeals.</p>

<p>1. Internal revenue @=>47 — Evidence sustaining conviction as illicit LIQUOR DEALER.</p> <p>Evidence that defendant, a dairyman, had three cases of whisky in his possession, and sold two bottles to two strangers, who gave no reason or excuse for the purchase, held sufficient to sustain a conviction for carrying on the business of retail liquor dealer without payment of the. special tax.</p> <p>2. Criminal law @=1036(1), 1044 — Objection and motion to strike necessary TO REVIEW OB RULING ON EVIDENCE.</p> <p>Admission of incompetent evidence cannot be reviewed, in the absence of objection or motion to strike out.</p>

<p>Pleading @=»345(1) — Insured entitled to judgment on pleadings.</p> <p>Under the contract of insurance in suit, as construed by the appellate court on a former review, plaintiff held entitled to judgment on the pleadings.</p>

Suit in equity by Fred E. Lee, administrator of the estate of Arthur K. .Beckwith, deceased, against the Malleable Iron Range Company. Decree for complainant, and defendant appeals.

<p>Appeal from the District Court of the United States for the Southern Division of the Southern District of Illinois.</p> <p>Suit by the Homer Brooke Glass Company against the Schram Glass Manufacturing Company. From a supplemental decree for complainant, defendant appeals.</p>

<p>In Bankruptcy. Application to revoke the discharge of A. Weintrob, bankrupt. On motion to dismiss the petition.</p>

<p>Shipping <@=>384 — Vessel not liable for breach of contract of shipment, DUE TO SEIZURE UNDER EXECUTION.</p> <p>Under Harter Act, § 8 (Comp. St. § 8031), providing that neither a vessel nor her owner shall he held responsible for damages or loss resulting from seizure under legal process, a vessel was not liable for failure to transport freight received on the wharf, and for which bills of lading were issued, where the failure was due to the seizure of the vessel under execution.</p>

<p>Bankruptcy @=>123 — Secured creditors not entitled to vote for trustee.</p> <p>Furnishers of materials to a bankrupt building contractor, who had served attested accounts on owners of buildings under construction, which under the laws of the state effects an attachment- on any money then or subsequently due the contractor, held secured creditors within Bankruptcy Act, § 1(23), Comp. St. § 9585, and not entitled to vote for trustee, in tne absence of proof that no money was due or became due to which their lien could attach.</p>

<p>1. War <3=>12 — Alien Property Custodian, taking over enemy’s rights UN DER TRUST, MUST SUBMIT TO ACCOUNTING BY TRUSTEE.</p> <p>Where the Alien Property Custodian demanded a transfer, by one holding securities in trust for enemies, of the right, title, and interest of the enemies, and did not assert a legal right to the securities themselves, the capture did not change the character of the enemies’ right, and if such rigid was subject to an accounting, the custodian must submit to some judicial determination between himself and the trustee.</p> <p>2. War <©=312 — Alien Property Custodian may compel accounting for TRUST FUNDS.</p> <p>The Alien Property Custodian, having taken over the rights of enemies in securities held in trust, may file a bill to compel an accounting upon showing that the period for distribution has arrived.</p> <p>3. War <3=312 — Alien Property Custodian may maintain suit to reduce PROPERTY TO POSSESSION.</p> <p>Under Trading with the Enemy Act, § 17 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 3115^1), conferring jurisdiction on the District Courts to enforce the provisions of such act, the Alien Property Custodian may begiu such ancillary proceedings as are necessary to reduce to possession property taken over by him.</p> <p>4. War <3=312 — Enemies’ trustee may sue Alien Property Custodian for accounting AND INSTRUCTIONS.</p> <p>One holding securities in trust for enemies, whose rights have been taken over by the Alien Property Custodian, may sue the Custodian in the United States District Court for a settlement of his accounts and instructions.</p> <p>5. War <@=>12 — Enemies’ trustee cannot sue Alien Property Custodian for ACCOUNTING WITHOUT RECOGNIZING HIS TITLE.</p> <p>One holding securities in trust for enemies, whose rights have been taken over by the Alien Property Custodian, cannot sue the Custodian for an accounting, without recognizing the title of the Custodian, and, where he disputes such title, the bill will be dismissed.</p> <p>6. War <@=>12 — Equitable interests in trust fund subject to capture.</p> <p>Under Trading with the Enemy Act, § 7 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 3115 %d) subds. (a), (e), and (d), the equitable interests of enemies in a trust fund in personal property may be captured.</p> <p>7. War <@=>12 — Notice to enemies’ trustee by Alien Property Custodian SUFFICIENT, THOUGH SIGNED BY A SUBORDINATE.</p> <p>A demand on a trustee, holding property in trust 'for enemies, for a transfer of their rights, titles, and interest to the Alien Property Custodian, was sufficient, though signed by a subordinate, under an executive order authorizing him to delegate his power.</p> <p>8. War <@=>12 — Statute declaring residents of Germany enemies, regardless OF CITIZENSHIP, IS VALID.</p> <p>The provision of Trading with the Enemy Act, § 2 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 3115%aa) subd. (a), declaring residents of, Germany enemies, regardless of their citizenship, was within the powers of Congress.</p> <p>9. Interpleader <@=>8(1) — Void claims will not support bill.</p> <p>It is not enough to support a bill of interpleader that baseless claims are made against the stakeholder, and, if they are void on their face, the bill will not lie.</p> <p>10. War <@=>12 — Interpleader will not lie against Custodian and enemies ON BEHALF OF TRUSTEE.</p> <p>A bill of interpleader cannot be maintained by one holding securities in trust for enemies, a transfer of whose rights has been demanded by the Alien Property Custodian, against the aliens and the Custodian, as it is the intention of the Trading with the Enemy Act (Comp. St 1918, Comp. St. Ann. Supp. 1919, §§ 3115%a-3115%j) that the decision of the Custodian shall be conclusive and that no remedies, except under section 9, shall exist</p> <p>11. War <@=>12 — Trading with the Enemy Act not invalid for lack of provision FOR REMEDY IN COURT.</p> <p>The Trading with the Enemy Act .(Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ 3115%a-3115%j) is constitutional, though it provides no remedy for a review of the acts of the Alien Property Custodian in taking over property, except by suit under section 9, authorizing suits by claimants within six months after the conclusion of peace.</p>

In Bankruptcy. In the matter of Elizabeth V. Tietje, bankrupt. Proceeding for distribution of fund realized from sale of real estate. On exceptions to report of special master.

<p>1. Bankruptcy <§=»328 — Composition does not extend time eor filing claims.</p> <p>The fact that a composition has been confirmed, and the fund ordered applied in payment of claims filed and allowed and those thereafter filed and allowed, does not operate to extend the time for filing claims beyond one year after adjudication, as limited by Bankruptcy Act, § 57n (Comp. St. § 9641), nor has the court authority to allow claims filed after expiration of that time.</p> <p>2. Bankruptcy <@=»387 — Composition a “bankruptcy proceeding.”</p> <p>A composition is a “bankruptcy proceeding,” the consideration paid being but a permitted substitute for the bankrupt estate, to be administered by the court under the same restrictions and procedure, so far as applicable.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Bankruptcy Proceedings.]</p>

<p>In Equity. Suit by the Higgins Oil & Fuel Company and others against J. B. Delaney and others.</p>

<p>Mines and minerals <S=»58, 79(6) — Exploration oil lease held valid, and NOT SUBJECT TO FORFEITURE.</p> <p>An exploration and development “unless lease” for oil and gas, for which lessee paid a substantial bonus, with privilege of renewal by payment, of a substantial sum annually, held a valid mutual contract based on a valuable consideration, and not subject to forfeiture because of failure to make an annual payment In time to a grantee of lessor, where it was in fact made before due, but through mistake of a clerk In failing to make proper entry of transfer of title on the records of lessee the payment was sent to lessor, instead of his assignees.</p>

<p>In Equity. Suit by Mary J. Cochrane against Francis P. Garvan, Alien Property Custodian, and others.</p>

<p>At Law. Action by Isaac C. Weber, surviving partner of the partnership of W. P. Jacoby and Isaac C. Weber, trading as W. P. Jacoby & Co., against the Pennsylvania Railroad Company. On motion by defendant for new trial.</p>

<p>1. Attorney and client <@^>28 — Persons practicing law may me taxed.</p> <p>The state may impose a license tax on the practice of law, and make it unlawful to practice law without procuring a license thereunder.</p> <p>2. Injunction <S=^>85(2) — Enforcement of ordinance will not be restrained, THERE USING A REMEDY AT LAW.</p> <p>Persons, claiming that a city ordinance imposing a license tax on the practice of law is invalid, have a plain, speedy, and adequate remedy at law by writ of error to review a judgment for tiie fax or a judgment of conviction, or by habeas corpus, and an injunction restraining its enforcement will be denied, unless the city authorities seek further litigation pending the prosecution of one of such remedies.</p>

<p>In the matter of M. I. Harrell and Frank Harrell, bankrupts. On application for discharge.</p>

In Equity. Suit by Charles D. Hamner, receiver of the First National Bank .of Alma, Kan., against Charles R. Miller and others. On. supplemental bill, praying for decree on original bill. Granted.

<p>In Admiralty. Suit by Anton Anderson against the steamship Kalfarli.</p>

<p>In Admiralty. Suit for collision by the Columbia River Packers’ Association against the steamship Nishmaha. On prayer for warrant of arrest.</p>

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>Criminal prosecution by the United States against George A. Blisse. Judgment of conviction, and defendant brings error.</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 Cyril Ousler. Judgment of conviction, and defendant brings error.</p>

<p>Patents <s=^328 — Fob electrical system of oar lighting valid, but not INFRINGED.</p> <p>The Jepson patent, No. 1,179,373, for an electrical system of distribution, particularly adapted for use in railroad passenger cars, held valid, but not infringed.</p>

<p>1. Patents ©=328 — For rubber heel not infringed.</p> <p>The Tuitord reissue patent, No. 11.019, for a rubber heel, held not inf ringed on review of an order granting a preliminary injunction.</p> <p>2. Patents ©=>105 — Limitation as to form of device concludes patentee.</p> <p>Where a palentee, for some supposed advantage, has limited the form of his device, he cannot, for the purpose of establishing infringement, insist that the limitation is immaterial.</p> <p>3. Patents ©=259 — Contributory infringement not made out because defendant’s DEVICE MAY BY WEAR BECOME IDENTICAL.</p> <p>A charge of contributory infringement cannot be sustained because, while defendant’s device, as made and sold, differs materially in form from that of the patent, it may, as the result of wear, become identical.</p>

C. Munger, Judge. Suit by Daniel B. Duten against the Wilson Reinforced Concrete Company and others to restrain infringement of patents. From a decree holding three of the patents invalid for want of invention, and the fourth not infringed (254 Fed. 107), complainant appeals.

<p>Appeals from the District Court of the United States for the District of' Kansas; John C. Pollock, Judge.</p> <p>Suits by Daniel B. Luten against Arthur E. Allen and others and against , Joseph W. Young and others. From decrees for the defendants in each case, entered on motions to dismiss (254 Fed. 587, 591), complainant appeals.</p>

<p>Patents @=>328 — For infant’s band invalid for lack of invention.</p> <p>The Charles E. Ovenshire patent, No. 800.237, for improvement in infant’s hands or shirts, held void for lack of invention.</p>

<p>1. Patents <§=>328 — Por revolving door anticipated by earlier patent to SAME INVENTOR.</p> <p>Claims 1, 2, 3, 13, 22, 23, and 24 of the Van Kannel reissue patent No. 14,255 for an automatically collapsible revolving door held invalid, as anticipated by patent No. 656,082, issued to the same inventor and now expired.</p> <p>2. Patents <§=>120 — Pioneer patentee cannot prolong monopoly by patenting ONE FEATURE OF THE DEVICE.</p> <p>Where an inventor of an automatically collapsible revolving door was granted a pioneer patent, and insisted upon and obtained a construction so broad that any form of double-acting binge or of a releasing device was an infiúngemení, he could not prolong his patent monopoly by subsequently obtaining a patent for some one form of double-acting hinge or self-releasing or collapsible device.</p> <p>3. Patents <©=>181 — Construction infringing patent mat be made and SOLD AFTER EXPIRATION OF PATENT.</p> <p>A construction, which was anticipated by a patent and condemned as an infringement of it, may be freely made and sold after such patent has expired.</p> <p>4. Judgment <S=>626, 675(2) — Patents @=>28(> — Party conducting defense IS BOUND BY AND ENTITLED TO BENEFIT OF JUDGMENT, BUT NOT REQUIRED TO BECOME PARTY.</p> <p>A corporation, employing counsel appearing for defendant in a patent infringement suit, and conducting the defense at its own cost and expense, is a privy to any judgment rendered, and bound thereby, but was not required to become a party to the record.</p>

<p>1. Taxation <§=>008(2) — Jurisdiction of equity to enjoin collection of illegal tax. ■</p> <p>Equity held to have jurisdiction of a suit to enjoin collection of alleged illegal taxes, where complainant had no right of appeal under the statute from the order imposing such tax.</p> <p>2. Taxation <§=>79 — Property delivered on conditional sale contracts not TAXABLE TO SELLER.</p> <p>Where the method of business of a sewing machine company was to lease its machines by instruments containing no reference to purchase, but the real agreement was that on payment of rental for the term the machine should be the property, of the lessee, such transactions were in fact conditional sales, and where such sales, unrecorded, were void under state law against creditors and bona fide purchasers, the lessees became owners as against every one, except the company, and under Gen. Code Ohio, §§ 5309-5372, the machines were taxable to them, and not to the company.</p> <p>3. Taxation <S^>608(8) — Enforcement of penalty, in past legal, will not BE ENJOINED.</p> <p>A penalty for delinquency, imposed on a reassessment, which, was in part illegal, cannot bo legally enforced; but, where the reassessment was made necessary by false returns by the taxpayer, a court of equity will not grant relief by injunction against enforcement of the penalty on that part of the reassessment which was valid,</p> <p>á. Taxation i@=610 — Right to enjoin illegal tax.</p> <p>A court of equity will enjoin enforcement of taxes, which are excessive, as including property not legally taxable to complainant, and penalties thereon, only on condition that complainant pay the taxes and penalties legally due.</p>

<p>1. Fraudulent conveyances <$=>172(1) — Valid as to maker.</p> <p>A deed, although in fraud of creditors, is valid as to its'maker.</p> <p>2. Bankruptcy <$=>185 — Right op trustee to avoid fraudulent deed depends ON RIGHTS OF CREDITORS.</p> <p>A deed by the bankrupt can be avoided by his trustee, as being in fraud, of creditors, only if the trustee represents some creditor entitled to avoid.</p> <p>3. Bankruptcy <$=>387 — Effect of confirmation of composition stated.</p> <p>A composition is not alone a contract between the bankrupt and his unsecured creditors, but also, on its confirmation, a judgment of the court having definite legal results.</p> <p>4. Bankruptcy <$=>387 — Failure of creditor to reinstate proof of claim WITHDRAWN • DOES NOT AFFECT CONFIRMED COMPOSITION AS DISCHARGE OF SUCH DEBT.</p> <p>In view of Bankruptcy Act, § 14c (Comp. St. § 959S), that a creditor’s proof of claim was unauthorizedly withdrawn and never reinstated by her, and that she was not paid anything from the composition, did not prevent the composition, when confirmed, from operating to discharge her debt.</p> <p>5. Bankruptcy <$=>388 — New promise to pay discharged debt makes promisee GENERAL CREDITOR.</p> <p>Where, after wife’s claim against her husband was discharged by confirmation of composition in his bankruptcy proceedings, he again promised to pay her debt, she became again his general creditor.</p> <p>6. Bankruptcy <$=>387 — Composition res judicata of right to set aside DEED AS IN FRAUD OF CREDITORS.</p> <p>Where deed to a bank as security for a loan to grantor was of record when grantor became bankrupt, and was not, on any ground of being fraudulent as to creditors, set aside in the bankruptcy proceedings, wherein bankrupt’s composition was confirmed, the deed stood thenceforth as to subsequent creditors purged of the infirmities of its origin, and the right to attack it could not be revived by bankrupt’s new promise to pay a debt to his wife, which had been discharged by the composition, for, while as to him it may have been the old debt revived, as to others it was a new debt, based on the consideration of the moral obligation of the old debt.</p> <p>7. Bankruptcy <$=>387 — Judgment lien unaffected by bankruptcy.</p> <p>If a judgment against the bankrupt was a valid lien on real property, and did not share in the bankrupt’s composition, its lien was unaffected by the bankruptcy.</p>

<p>In Admiralty. Suit by the National Dry Dock & Repair Company against the steamer Andrew J. Smith.</p>

<p>In Admiralty. Suit by Anker W. Iienriksen against the steamship Alector.</p>

Two actions, by Winfield Bernhardt, a minor, by his next friend, William F. Bernhardt, and by Charles E. Phoebus, an infant, by his next friend, Edgar E. Phoebus, against the City & Suburban Railway Company. From a judgment for defendant in each action, plaintiffs appeal.

<p>Appeal from Supreme Court of the District of Columbia.</p> <p>Action by the District of Columbia against the R. P. Andrews Paper Company. Judgment for the District of Columbia, and defendant appeals.</p>

<p>Appeal from Supreme Court of the District of Columbia.</p> <p>Action by the District of Columbia against Saks & Co. From a judgment" for the District of Columbia, defendant appeals.</p>

<p>Appeal from Supreme Court of the District of Columbia.</p> <p>Action by the District of Columbia against Abraham Lisner. From a judgment for the District of Columbia, defendant appeals.</p>

<p>Appeal from the Supreme Court of the District of Columbia.</p> <p>Suit by Willis R. Ruggles and wife against John G. Slater. From a decree for plaintiffs, defendant appeals.</p>