Volume 271 — Federal Reporter

Petition to Revise Order of the District Court of the United States for the Southern District of New York. In the matter of the Automatic Typewriter & Service Company, alleged bankrupt. On petition by alleged bankrupt to revise orders denying a motion to dismiss the petition and granting a motion to dismiss certain defenses pleaded.

<p>At Daw. Rule issued on application of Gregory Weinstein against Francis G. Caffey, District Attorney, and others. On objections to •jurisdiction of court.</p> <p>This is a proceeding begun by rule issued out of the District Court, directing the United States Attorney for the Southern District of New York, John E. Hoover, Deputy Attorney General of the United States, Byron N. Uhl, Acting Commissioner of Immigration, Augustus N. Schell, Inspector of Immigration, and Charles K. Scully, Acting Chief of the Bureau of Investigation of the Department of Justice, to show cause before the District Court why they should not return to the petitioner certain books and papers described in the affidavits. It provided that service of a copy of the order on the United States Attorney should be sufficient. Service was effected on the United States Attorney, John E. Hoover, and Augustus N. Scliell. On the return day, the District Attorney appeared specially, on behalf of all three respondents served, to object to the jurisdiction of the court over the 'application.</p> <p>The affidavits on which the rule was granted show that the petitioner was taken in custody on January 5, 1920, by the agents of the Bureau of Investigation of the Department of Justice under a warrant of arrest; that he was taken to the office of the Department of Justice in New York City, and examined, and then to Ellis Island, where he was kept in close confinement, without being allowed any communication with persons outside. From this restraint he was released by order of this court,on January 8, 1920. While in such custody, certain agents of the Department -of Justice by threats and compulsion forced their way into his apartment without search warrant or other authority, and took possession of certain of his books, letters, and papers. On the 28th of February, 1920, at a hearing at Ellis Island (the character of which is not stated, but which was presumably to inquire as to his deportation), a letter so taken illegally from his possession was produced by the respondent Hoover and offered in evidence. This, with other of the documents seized, the petitioner alleges are in the possession or custody of the agents of the Department of Justice under the direction of the respondent Hoover, or in the custody of the Commissioner of Immigration, or his subordinates.</p>

<p>Bankruptcy <§=>68—Exemption of farmer relates to time of commission of alleged act of bankruptcy.</p> <p>' Under Bankruptcy Act, § 46 (Comp. St. § 9588 [b]), an act committed by a person who was at the firne engaged chiefly in farming cannot be charged as an act of bankruptcy and made tbe basis of involuntary proceedings.</p>

<p>In Admiralty. Suit by Frank McWilliams, Incorporated, against the mud scow No. 14.</p>

<p>In Equity. Suit by William C. Doan and others against the Consolidated-Progressive Oil Corporation. On motion to dismiss bill.</p>

<p>At Law. Action by the United States against Hugh A. Garland, receiver of the Pure Water Apparatus Company, and the American Surety Company of New York. Judgment for plaintiff.</p>

<p>1. Assignments <3=121—Eight of assignee to maintain suit.</p> <p>The assignee in good faith and for sufficient and valid reason of a claim for money due held entitled to maintain suit therefor.</p> <p>2. Maritime liens <3=28—Supplies furnished to owner.</p> <p>One furnishing gasoline to a motor boat on orders of the captain, pursuant to an established course of business, under which the bills had been paid periodically by the owner, held entitled to a maritime lien under Act June 23, 1910 (Comp. St. §§ 7783-7787).</p>

In Equity. Suit by Louis Nekritz, doing business as the Perfect Polish Company against Barnett Duberstein and John Cooper, doing business as the New York Stove Polish Company. On mo - tion for preliminary injunction.

<p>Salvage <3=28—Rescue of drifting barge.</p> <p>A salvage award of $150 made to a tug for tbe rescue and return to her tow of a barge, which had broken loose and was in danger of loss.</p>

<p>At Taw. Action by Mary T. Morrell against Alphonse J. Talonde and the United States Fidelity & Guaranty Company. On motion of defendant corporation to dismiss.</p>

<p>1. Aliens <3=61—Army service does not render Korean eligible for naturalization,; “free white person;” “any alien.”</p> <p>The use of the term "any alien” in the several provisions of naturalization in Act June 29,1906, § 4, subd. 7, as added by Act May 9,1918 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 4352), is not intended to enlarge the right to naturalization, as restricted by Rev. St. § 2109 (Comp. St. § 4358), to “free white persons” and persons of African nativity or descent, except in the specific cases of native-born Filipinos and Porto Ricans therein mentioned, and a native Korean is not eligible for naturalization, even though he served in the army during the recent World War.</p> <p>[Ed. Note.-—For other definitions, see Words and Phrases, First and Second Series, Any; White Person.]</p> <p>2. Aliens <3=68—Filipino may not be naturalized until two years after declaration of intention.</p> <p>A native-born Filipino, on application for naturalization under Act May 9, 1918, § 4, subd. 7 (Comp. St. § 4352), must present “the required declaration of intention,” which must have been made not less than two years prior to bis application.</p>

<p>1. Patents <3=167(2)—Claims cannot be expanded by specification.</p> <p>While the specification may be referred to for the purpose of better understanding the meaning of claims or of limiting them, it can never be made available to expand the claims.</p> <p>2. Patents <3=73—Invention does not date from conception.</p> <p>An invention does not date from the conception in the mind of the inventor, nor from unsuccessful experiments abandoned by him; but he must represent it in some physical form or impart his conception to another.</p> <p>3. Patents <3=289—Suit for infringement brought within statutory limitations usually not dismissed for laches.</p> <p>Only under very special circumstances should the court hold one chargeable with laches whose litigation was instituted within the statutory limitation, which in patent cases is six years.</p> <p>4. Patents <3=289—Knowledge for 10 years of infringement bars suit.</p> <p>A complainant held barred by laches from maintaining a suit for infringement, where both he and the patentee, his assignor, had knowledge of the claimed infringement ten years before the commencement of suit and that defendant was during such time building up a trade in the alleged infringing article and claiming the invalidity of complainant’s patent.</p>

<p>Patents <3=328—897,419, for sash pivoting devico, n-ot infringed.</p> <p>The Bogenberger patent, No-. 897,419, for a sasli pivoting device, as limited by amendment oí the claims in the Patent Office, held not in* fringed.</p>

<p>In Admiralty. Suit for collision by J. E. Turlington, master of the Steamship Berkley, against the New York, Philadelphia & Norfolk Railroad Company. Decree dividing damages.</p>

In Equity. Suit by the Metropolitan Trust Company of the City of New York against the Richmond Passenger & Power Company and others. On application of the Bankers’ Trust Company, executor, and others, for leave to file petitions of intervention.

<p>Collision <3=71(3)—Tug entering slip not liable for collision with vessel lying at end of pier.</p> <p>A tug which, when maneuvering to enter a crowded slip with a tow alongside, under the influence of an ebb tide, sagged against a vessel lying at the end of the pier with her bow over the line of the slip, held not liable for the injury caused to such vessel, in the absence of evidence that she was carelessly or recklessly navigated, and especially in view of New York City Charter, § 879, providing that vessels lying at the end of piers do so at their own risk of injury.</p>

<p>1. Equity <3=380—That complainant does not come with clean hands need not be pleaded.</p> <p>That a complainant does not come into court with clean hands is not a detense which must be pleaded.</p> <p>2. Trade-marks and trade-names <3=68—Refusal to sell to customers of anotlier not unfair competition.</p> <p>A trader or manufacturer may, in the absence of an intent to create or maintain a monopoly, freely exercise his own discretion as to persons with whom Ire will dea), and may announce in advance the circumstances under which he will refuse to sell.</p>

<p>In Admiralty. Suit by William W. Aldrich against the steam tug Theodore Smith; the Messick Towing & Transportation Company, claimant.</p>

<p>Release <3=7(1)—On settipneni for personal injuries valid.</p> <p>A release signed by libelant on receipt of a lump sum in settlement of a claim for personal injuries, after payments made to him under the State Workmen’s Compensation Daw had ceased, because of the decision of the Snpteme Court that such law was not applicable to such cases, held to have been executed with full understanding of the situation and to bar a suit for further compensation.</p>

<p>1. Corporations <3=209—Intervention by st©eidicM©KJ on ground of fraudulent failure to defend held barred by laches.</p> <p>Stockholders in a railroad company, which by its act of incorporation had assumed the obligation of its predecessor to guarantee the bonds of another railroad company, are barred by their laches from asking leave to intervene in a suit to sell the railroad property and present the defense of fraud in that agreement to a judgment based thereon in another district, where it appeared that court proceedings against the two railroad companies on the guaranteed bonds had been pending for five years.</p> <p>2. Railroads @=141—Interlocking directorates of noaeompeling lines not fraudulent.</p> <p>The fact that railroad companies, which were noncompeting, but were connecting lines, had interlocking directorates, is not fraudulent.</p> <p>3. Judgment @=701—Against corporation concludes stockholders’ defenses not fraudulently suppressed.</p> <p>A judgment against a corporation is conclusive against its stockholders, who were represented by it, unless it was obtained by fraudulent collusion between the creditor and the officers or directors of the corporation to suppress defenses which the corporation might have asserted.</p> <p>4. Corporations @=211(6)—Intervening' petition by stockholders to prevent sale under judgment must raise serious question of fraudulent fallare to defend suit against corporation.</p> <p>A petition by stockholders to intervene and prevent the sale of corporate property in satisfaction of a judgment claimed to have been obtained by fraud in not defending the suit against the corporation, • though it need not make a showing of fraud as fully and definitely as at the trial of intervention, must disclose enough fraud to challenge the serious attention of the court.</p> <p>5. Corporations @=212—Stockholders held not to have shown fraudulent failure to defend suit against corporation, so as to entitle them to intervene.</p> <p>Where it appeared that the defense of an action against a corporation on its guaranty of the bonds of another was conducted by able independent counsel not connected with either corporation, and that every possible defense was presented in the trial court and on appeal to the Circuit Court of Appeals, except the claimed defense of fraudulent collusion in the guaranty, stockholders have failed to make a sufficient showing to entitle them to intervene and defend on the ground that the judgment of the corporation was procured by fraudulent collusion.</p>

<p>1. Principal and agent <3=29—Agent not entitled to renewal of contract.</p> <p>A contract gave plaintiff exclusive agency for sale of goods made by defendant in certain territory for a specified term, and provided that it should be renewed for an additional five years, if the net sales “shall have amounted to the sum of $50,000 for the year 1915, and shall have increased 10 per cent, each year for the two years following, and thereafter shall have showed 5 per cent, net increase annually (luring the life of the contract.” It further provided that, in the event of a general depression in business, “the said second party shall not bo required to make the yearly increase in sales as provided herein during the period in which said depression occurred.” Held, that the latter provision did not apply to sales during 1915, and that net sales of $50,000 during that year were an essential requirement to the right of plaintiff to a renewal of the contract.</p> <p>2. Contracts <®^169—Not subject to construction by extrinsic circumstances, where language is plain.</p> <p>The eonoiuions and circumstances surrounding the making of a written contract may be considered, to .determine the intention of the parties, where the contract is ambiguous; but, where its' language is clear, the parties are bound by its terms.</p>

Suit in equity by Samuel Buyer, doing business as Samuel Buyer & Co., against William S. Guillan, the Old Dominion Transportation Company, and others. From an order vacating a restraining order and denying a motion for preliminary injunction, complainant appeals.

<p>Appeal from the District Court of the United States for the Southern District, of New York.</p> <p>Suits in admiralty for collision by the Czarnikow-Rionda Company, by the Sibiria Steamship Corporation and another, and by the Warner Sugar Refining Company against the steamship Binghamton, the Binghamton Steamship Company, Incorporated, claimant, and by said claimant and others against the steamship Sagua, claimed by the Sibiria Steamship Corporation. Decree holding both vessels in fault, and both claimants appeal. Modified, by discharging the Binghamton from all liability.</p> <p>Certiorari denied, 254 U. S.-, 41 Sup. Ct. 377, 65 L. Ed.-.</p> <p>Appeals by claimants of both steamships from decrees in admiralty holding both the Sagua and Binghamton at fault for a collision which resulted in injuries to both vessels and loss of much cargo on the Sagua. On the night of March 18-19, 1917, the Binghamton, light, was proceeding from Boston to Norfolk, steering southwest; at the same time the Sagua, laden with a cargo of sugar, was on a voyage from Cuba to New York, steering for some time before collision N. 8“ E.- Both steamers were- making about 10 knots, and both expecting to pass close to the Bamegat gas buoy. Neither had any difficulty in seeing this buoy; the night being clear,8 or “pretty good” for seeing lights. The wind was fresh, perhaps a “moderate gale,” from the northwest, and the sea rough—rather “choppy.”</p> <p>The engineers on both vessels noted the shock of collision at 2:25 a. m. The Sagua probably made this notation more accurately, because her engineer felt une shock without any previous warning of danger or any suggestion of coming difficulty. Down to the moment of collision the Sagua’s éngines were at “full ahead,” while those of the Binghamton were ordered “full astern” at 2:24 and were going astern at collision. Consequently the engineer of the Binghamton only estimated the moment of contact at about a minute after the order astern. Certainly afi collision the Binghamton was still forging strongly ahead, and she struck the Sagua abaft amidships on the starboard side, and almost at right angles, with sufficient power to cut in about 15 feet.</p> <p>The District Court held the Sagua liable because, being the burdened vessel, she failed to keep out of the Binghamton’s way, and similarly held the Binghamton because (1) “she stubbornly held her course into collision,” and (2) the watch officer, seeing that the Sagua was approaching in defiance of rule, left the pilot house and called the captain, who instantly came out, saw collision to be probably inevitable, and ordered the engines full astern. The captain’s bed was about 17 feet from the wheel in the' pilot -house; his room being separated from the pilot house by a bathroom only. The estimated time required to bring him out was 10 or 12 seconds. He was called from the bathroom door.</p> <p>From decrees according to the above findings, both claimants appealed.</p>

<p>1. Patents <3=328—880,058, for trunk, net infringed.</p> <p>The Wilt patent, No. 880,058, for improvement in trunks of wardrobe type, hold not infringed.</p> <p>2. Patents <3=246—Combination not infringed, where elements are omitted.</p> <p>A patentee, who describes and claims a combination, cannot be heard to say that some of the elements described are nonessential, for the purpose of establishing infringement by one who omits such elements and does not, therefore, use the combination.</p> <p>3. Patents <3=328—1,080,654, for improvements in suspension fixtures for trunks, void for lack of invention.</p> <p>The Wilt patent, No. 1,000,054, for improvements in suspension fixtures devised for trunks, hold void for lack of invention.</p>

<p>Brokers <3=56(3)—Entitled to commission' on sales direct to customer procured by him.</p> <p>Defendant, as a broker, under authority from plaintiff, made a contract to furnish a customer with a stated number of ears per day of coal produced by plaintiff, until further notice, and during performance of such contract, with plaintiff’s knowledge, was negotiating with the customer for a contract for a fixed term and delivery of an additional quantity, when plaintiff itself made such contract direct with the customer on the same terms and at the same price. Held, that defendant was entitled to its agreed commission' on the coal delivered under such contract.</p>

<p>1. Pleading <3=388—Difference between pleading and proof as to extent of false representation not variance.</p> <p>That an answer alleged a false representation by á plaintiff corporation that it had a paid-in capital of $5,000, while the proof was that it represented its paid-in capital as $10,000, held not a material variance; the gist of the defense being the false representation.</p> <p>2. Sales <®=53 (3) —Right of rescission question for jury.</p> <p>The right of a defendant to rescind a contract for the sale to defendant of 500 bales of cotton linters for future delivery, on the ground of false representations by plaintiff that it was a corporation with a stated amount of paid-in capital, held a question for the jury, where there was evidence that such representations were made, and that at the time of contract plaintiff was not yet organized, and tending to show that, when defendant gave notice of rescission, plaintiff had little, if any, capital paid in.</p>

Appeals from the 'District Court of the United States for the Eastern District of New York. Suit in admiralty for collision by the Egerton Towing Company against the steamer New London; the Central Vermont Transportation Company, claimant, with cross-libel against the steam tug Egerton. Decree against the New London alone, and her claimant appeals. Modified, to hold both vessels at fault.

<p>Carriers <3=85-Held not required in notice under ME of lading to “order notify” to advise consignee of right of Inspection.</p> <p>Under a bill of lading for a carioad shipment to order of consignor with notice to consignee the carrier hold not required in such notice to advise the consignee of a right of inspection given by the bill of lading.</p>

<p>Petition for Writs of Certiorari and Prohibition to the District Court of the Canal Zone; John W. Ftanan, Judge.</p> <p>Petition by Arthur Brooks Simldns against Cordelia Luikart Simldns and another for writs of certiorari and prohibition to the District Court of Canal Zone.</p>

<p>In Error to the District Court of the United States for the Eastern District of Louisiana; Rufus E. Foster,</p> <p>Action at law by John II. Lawrence aiid wife against the Cumberland Telephone & Telegraph Company. Judgment for plaintiffs, and defendant brings error.</p>

<p>Courts <3=308—Diversity of citizenship must exist as to all parties on one side and all parties on the other.</p> <p>A federal court is without jurisdiction of a suit on the ground of diversity of citizenship, unless it appears from the record that such diversity exists between all the parties on one side and all the parties on the other.</p>

<p>Patents <3=328—52,985, for design for fern dish, held not so obviously valid as to authorize preliminary injunction.</p> <p>Preliminary injunction against infringement of the Farber design patent, No. 52,985, for a design for a fern dish, denied on an answer denying that patentee was the originator of the design.</p>

At Law. Action by Samuel O. Lazarus and others against the New York Central Railroad. On motion by plaintiff for directed verdict. This is an action at law brought against the final carrier for the loss of parts of two shipments of tin, laden at Singapore and consigned to the British eonsul at New York, “Notify Lewis Lazarus is Sons” (the plaintiffs).

<p>In Admiralty. Suit by the Maru Navigation Company against the Societa Commerciale Italiana di Navigation.</p>

<p>1. Mines and minerals <3=31(2)—End and side lines of lode claims determined by course of discovery vein.</p> <p>The end and side lines of a lode mining claim are not necessarily those so designated by the locator; but the “end lines” are those which are crosswise of the general course of the discovery vein on the surface, although they may -have been located as the side lines.</p> <p>[Ed. Note.—Eor other definitions, see Words and Phrases, End Line.}</p> <p>2. Mines and minerals (2)—End lines of lode claim, for all extralateral purposes, fixed by course of discovery vein.</p> <p>Although Rev. St. § 2322 (Comp. St. § 4618), gives the locator of a lode claim the right to all tile veins which apex within its surface, the end lines of the claim, which fix extralateral rights in ail such claims, are determined by the course of the discovery vein.</p>

<p>Removal of causes <3=26—Suit between nonresidents of district is removable only with plaintiff’s consent.</p> <p>Under Juu. Code, § 29 (Comp. St. § 1011), authorizing removal to the District Court for the proper district of suits which could have been originally brought in the United States District Court, a suit in which both plaintiff and defendant were nonresidents of the state in which the suit was brought and of the district cannot be removed to United States District Court by the defendant without the consent of the plaintiff. •</p>

<p>At Law. Action by M. J. Newberry against the Central of Georgia Railway Company. On motions by plaintiff to set aside verdict and for a new trial.</p>

<p>Intoxicating liquors <3=257—Unlawful search and seizure.</p> <p>Seizure of liquor from a private residence prior to the fating effect of Const. Amend. 18, on a search made without a warrant by officers armed with shotguns and pistols, although there was -“invitation to enter and consent to the seizure,’’ held unlawful, and the owner of the liquor held entitled to its return.</p>

<p>In Equity. Suit for the infringement of a patent by the Medusa Concrete Waterproofing Company against the Ceresit Waterproofing Company and others.</p>

<p>1. Patents <3=328—51,559 for design for bathing doll, held invalid for want of invention.</p> <p>The Pfeffer design patent, No. 51,559, for a bathing doll, which consisted of decorating a plaster of paris doll of known design with ordinary one-piece bathing costume, held invalid for want of invention.</p> <p>2. Patents '§=’17—Invention involves doing what ordinary person skilled in art could not do.</p> <p>Doing what has not been done before is not necessarily invention, but that which is done must be something which the ordinary person skilled in the art would not know how to do, if oceasiQn for it arose.</p> <p>3. Patents <®=’28—Novelty, without invention, does not sustain design patent.</p> <p>A design is not patentable merely because it creates a pleasing impression on the eye, or is novel or salable; but it must also have invention, which requires more than the mere adaptation of old forms and designs to new purposes.</p>

<p>Appeal from the Commissioner of Patents.</p> <p>Interference proceeding between John H. Sharp and Harry C. Gamage. Prom a decision of the Commissioner of Patents awarding four of the counts to Gamage, Sharp appeals.</p>

In Error from the Police Court of the District of Columbia. Peter Do ftus was convicted of selling alcoholic liquors prohibited by law, and he brings error.

<p>1. Trial <3=418—Demurrer to evidence waived by subsequent imtroílntóion oí' evidence.</p> <p>A demurrer to plaintiff’s evidence at the close' of its main case is waived by the subsequent introduction of evidence to the merits by defendant.</p> <p>2. Appeal and error <5=237(3)—Sufficiency of evidence not raviewable, in absence of motion for directed verdict.</p> <p>Where there was no request by defendants for direction of a verdict, and no demurrer to the evidence after the close of all the evidence the question of the sufficiency of the evidence to sustain a verdict for plaintiff is not renewable in the appellate court.</p> <p>3. Evidence €=320—Testimony held incompetent, as based on a mere repetition of hearsay.</p> <p>On an issue as to whether two ears of cane seed shipped by defendants to plaintiff were of the kind and grade called for by the contract testimony of an inspector as to the kind and grade of samples tested by him, which he identified as coming from the cars in question only from his record, made from tickets giving the numbers of the cars, placed in the samples by some one of his assistants, to him unknown, who obtained them in the usual course of his business, hold incompetent; the tickets themselves from which the record was made being merely hearsay evidence which would have been inadmissible, if offered.</p> <p>4. Evidence <§=67 (3)—Evidence of character of seed when shipped, based on examination later, admissible, as condition presumed same.</p> <p>Testimony of a witness as to character and mixture of cane seed when examined by him held admissible to show Its character when delivered on a contract five months before; the presumption being that it was the same as when delivered.</p>

<p>1. Appeal and error <3=930(1)—Evidence conflicting with that favorable to verdict must be disregarded.</p> <p>In determining on writ of error whether the death of insured was accidental within the policy, the evidence which conflicts with that favorable to plaintiff, for whom the jury rendered its verdict,- must be disregarded.</p> <p>2. Insurance <@=>455—Death intentionally caused by another is accidental, if insured-had .no reason to anticipate it.</p> <p>Where a railway conductor armed himself to scare a passenger out of a toilet, from which he had refused to come on the conductor’s orders, and was shot and killed by the passenger before he had time even to threaten with his gun, his death was accidental, within an accident insurance policy, if he had no reason to anticipate that the passenger was armed, or that his action would tend to provoke a fatal encounter.</p> <p>3. Insurance <@=>668(11)—Whether lolling by another was accidental is for jury, where evidence is conflicting.</p> <p>Where insured was intentionally killed by another, and it is necessary to determine from conflicting evidence whether deceased by his wrongful conduct produced his death, or voluntarily and intentionally committed acts from which he foresaw or should have foreseen that death or injury might result, the issue whether the death was accidental must he submitted to the jury.</p> <p>4. Insurance <@=>668(11)—Evidence held to require submitting to jury whether lolling was accidental.</p> <p>In an action on an accident insurance policy to recover for the death of a railway conductor, who was killéd by a passenger whom he had ordered out of a compartment, conflicting evidence as to the circumstances^ preceding the shooting held to require submission, to the jury of the issue whether the conductor had reason to believe that his act would provoke an encounter which might result in his death.</p>

Actions by the Charles A. Ramsay Company and by the William H. Rankin Company against the Associated Bill Posters of the United States and Canada and others. Judgments dismissing the complaints, and plaintiffs bring error.

<p>1. United States <3=67(3)—Suit on government contractor’s bond cannot be maintained in equity. -></p> <p>A suit by laborers and materialmen ou the bond given by a government contractor to the government for their benefit cannot be maintained in. equity.</p> <p>2. Subrogation —Involves substitution in the ownership of a right.</p> <p>Subrogation involves three things, a valuable right, a person who owns, the right, and a person who is seeking to be substituted in that ownership.</p> <p>[Ed. Note.—For other definitions, see Words and Phrases, First and. Second Series, Subrogation.]</p> <p>3. United States <®=>74%, New, vol. 12A Key-No. Series—Laborers and materialmen have equitable priority to fund due contractor.</p> <p>Prior to Act Aug. 13, 1894, as amended by Act Feb. 24, 1905 (Comp. St. § 6923), requiring the bond of a government contractor to provide-for payment of laborers and materialmen, the government had irA contracts recognized an obligation to secure the payment of such clai, and that obligation still exists, notwithstanding the protection afforded, the statute, and entitles such claimants to a preference in equity, against general creditors of the contractor, to the fund received from t government.</p> <p>4. United States <S=’74Jé, New, vol. 12A Key-No. Series—Government conta held not to affect priority of laborers and materialmen.</p> <p>A contract between the United States and a contractor, requiring t contractor to pay all liabilities incurred in the prosecution of the wd for labor and material, and providing for payments to be made in ec formity to the specifications, which authorized the 10 per cent, dedueti from estimated work, does not affect, one way or the other, the equitaj right of laborers and materialmen to payment from the funds due t contractor in preference to his general creditors. j</p>

Hamilton, Judge. Suit by Julian Uñares and another against Sucesores De Bianchi for specific performance of a contract. From a decree dismissing the bill, plaintiffs appeal.

<p>Appeal from the District Court of the United States for the District of Utah; Tillman D. Johnson, Judge.</p> <p>Suit in equity by the Snake Creek Mining & Tunnel Company against the Midway Irrigation Company and others. Decree for complainant, and defendants appeal.</p> <p>The parties will be referred to herein as they appeax-ed in the court below, the appellants as defendants, and the appellee as the plaintiff. The plaintiff by its complaint sought to have its claim to the water flowing from its tunnel, between tbe portal of the tunnel and the point of diversion, less loss by seepage and evaporation, established and confirmed against the defendants; that it be decreed that the defendants have no right to take and divert from Snake creek below the point where the water, issuing from its tunnel, flows into Snake creek, and the defendaixts be enjoined from claiming said water or any part thereof.</p> <p>The material allegations in the complaint are that the plaintiff is the owner of a quarter section of land, and in April, 1910, it commenced to drive a tunnel, the portal of which is on said land, and constructed it 14,500 feet into the mountain at great depth, and is the owner thereof and the water issuing therefrom; that about 2,6S4 feet from the portal of the tunnel water was encountered percolating through the rocks and soil, which is conveyed through and from the tunnel in a sluice at the bottom of the tunnel, the amount of water flowing from the tunnel in 1918 being 14.38 second feet or 0,454 gallons per minute; that from the portal of the tunnel the water flows about 2,000 feet into Snake creek, which is a tributary of Provo river, both of which ax-e natural water courses; that water was first encountered in the tunnel in January, 1911, and has been increasing ever since, as the tunnel was lengthened; that, in permitting the water from the tunnel to flow into Snake creek, Tt did not intend to abandon its title to the water, and to become a part of Snake creek or Provo river, subject to appropriation by others, but claimed to own it, with the right to divert it for,irrigation or other beneficial purposes; that before the beginning of the irrigation season in 1914 it sold the right to take this water to the Provo Reservoir Company for the purpose of irrigation, which requires it for the growing of crops by its stockholders; that all other waters flowing into Snake creek, Spring creek, and Provo river had been theretofore appropriated for irrigation and other useful purposes; that the defendant Irrigation Compaxxy is a corporation for the- purpose of irrigation, and dexxies that plaintiff is the owner of the water flowing from said tunxxel, and claims that it was water subject to appropriation and use by it for its stockholders, and diverts for purposes of Irrigation all the water flowing from plaintiff’s tunnel into the creek; that it has diverted the water below where it flows from the tunnel into the creek, and deprived the Provo Reservoir Company and its stockholders of the use of said water, which prevents them from raising crops.</p> <p>The defendants filed an answer and counterclaim. Tu it they deny that; the water is percolating water, in the sense that it is a part of the soil lying' therein, but allege that said waters before they enter said tunnel are flowing waters, directly tributary to and part of a natural stream known as Snake creek, varying at times in proportion as ihe waters in Snake creek vary at different times. They deny that Snake creek and Provo river are public water courses, but allege that long before the plaintiff commenced the driving of the tunnel all the waters of Snake creek, Spring creek, and Provo river had become vested in private ownership of defendant and its stockholders. They deny that any of the surplus waters in said tunnel were subject to appropriation by the plaintiff, or any other person, except the defendants. They claim that the waters from said tunnel have for more than 25 years been appropriated and used by the defendants, who are now the owners thereof, and have the right to use the same for beneficial and useful purposes; no water having, been added to the creek or river since the driving' of the tunnel. They deny that plaintiff or its predecessors, within 25 years before the institution of their action, ever claimed or asserted that the waters from said tunnel were public waters or subject to appropriation.</p> <p>In their counterclaim the defendants allege that for more than 25 years they and their predecessors in interest have been the owners of all the waters and water rights for irrigation and other beneficial purposes of the waters and water rights for irrigation of Snake creek, by appropriation and diversion t that the natural sources of said creek consist of rain, melting snow, springs, and seepages, which, before the construction of the tunnel, ordinarily supplied the greater portion of the flowing water of said creek and were the main reliance of the defendants for the supply of water for the irrigation of their land and other beneficial purposes; that said springs and seepages had their source in the bosom of the mountains, and before the construction of the tunnel found their way to the surface of the mountains through natural channels and fissures of the rocks, and found their way into said ereeli, and were its natural tributaries and feeders; that all the waters of said creek and water rights pertaining thereto are owned by defendants, and are necessary and not more than sufficient, when economically used, for their purposes as stated; that the plaintiff wrongfully and in violation of defendants’ rights drove its tunnel, from the mouth of which a substantial quantity of water flows, sufficient to irrigate several hundred acres of land, which waters formerly found their way into the natural surface channel of Snake creek Through underground channels and sources; that the tunnel is in the immediate vicinity of Snake creek, its portal being in the canyon through which the crook flows, and in the prosecution of the work undermined, cut off, and diverted the underground flowing streams, springs, and seepage constituting' the permanent source of the flowing water of said creek, and thereby caused said waters to flow into the tunnel; that prior to the digging of plaintiff's tunnel the Mountain Lake Mining Company dug a deep tunnel into the mountain at a point higher up the stream and higher in elevation than plaintiff’s tunnel, which tunnel of the Mountain Lake Mining Company crosses Snake creek underneath its head; that the driving of the Mountain 1 jalee, tunnel dried up some of the springs, which theretofore had come to the surface, and which constituted the headwaters of Snake creek, and ever since the waters which formerly came to the surface through said springs thereafter flowed out of the mouth of said Mountain Lake tunnel; that since the driving of plaintiff’s tunnel the volume of water flowing out of the Mountain Lake tunnel lias receded one-third, all of which waters formerly found their way into Snake creek and supplied the natural volume of flow thereof; that by constructing its tunnel plaintiff has interfered with the natural supply of the flowing waters of Snake creek; that before the digging of the tunnel the natural subsurface water supply of said creek found its way through natural channels into the stream, uniform in volume relatively during the low-water season; that since then, and by reason thereof, the store waters from within the mountain drained off more rapidly, and by reason thereof defendants are deprived of water, which otherwise they would have had, and so deprived during the irrigation season each year, when it is necessary for the maturing of their crops; that if plaintiff is permitted to extend said tunnel further it will still more lessen the water supply, and make the farms and homes of defendant’s stockholders valueless.</p> <p>The prayer of the counterclaim is for an injunction, enjoining plaintiff from asserting any claim to the waters flowing from said tunnel and quieting defendants’ title to the water flowing from the tunnel and interfering with defendants’ free and unrestricted use thereof, and also enjoining it from extending its tunnel further in the mountain. The reply of the plaintiff to the counterclaim is in effect a general denial of the material allegations alleged.</p>

<p>In Error to the District Court of the United States for the District of Nebraska; Thomas C. Munger, Judge.</p> <p>Action at law by Elizabeth Marshall, administratrix, against Walker D. Hines, Director General of Railroads. Judgment for defendant, and plaintiff brings error.</p>

<p>L. Patents <3=328—781,802, for gas eitgme valves, void for anticipation.</p> <p>Tlie Barber patent, No. 781,802, for valves and valve gear for explosive engines, claims 8 and 9, covering inlet and exhaust valves so constructed as to be readily removable for cleaning and repair, which is the sole purpose of the. invention, held void for anticipation.</p> <p>2. Patents <®=>S8—Imjjorfeet davice may anticipate.</p> <p>If the mechanism made under a prior art patent is capable of producing, or is designed, adapted, or is used to produce, the same results or perform the same function, it may be an anticipation, though it is Imperfect.</p> <p>3. Patents <©=’73—Proof to carry bask date of invention must be beyond rea» sociable doubt.</p> <p>One who seeks to carry the date of invention back of the date of an anticipating patent assumes the burden of proof, and must establish the earlier date by evidence so cogent as to leave no reasonable doubt.</p> <p>4. Words aiid phrases—“> Irreal combustion engine.”</p> <p>An “internal combustion engine” is one in which the fuel charge, consisting of a combustible gaseous mixture, is ignited and exploded inside of the engine; the sudden explosion of the gases producing the combustion serving to force down the piston in the cylinder, thereby imparting motion to a crank shaft or other part.</p>

<p>Customs duties <3=93—Express receipt is not a “bill of lading,” so as to make indorsee liable for duty.</p> <p>An express receipt for merchandise, which names the consignee and is marked “nonnegotiable,” held not a bill of lading, within the meaning of Tariff Act Oct. 3,1913, § 3, par. B (Comp. St. § 5519), the indorsement of which passes title to the merchandise, and its indorsement by the consignee to a' connecting carrier does not make such carrier the consignee, nor render it liable for duty on the merchandise, even though it makes entry of the same.</p> <p>[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Bill of Lading.]</p>

Libel in admiralty by the United States Willow Furniture Company against La Compagnie Générale Transatlantique. Decree for libelant, and respondent appeals. Libelant (hereinafter called Willow Company) was the ultimate consignee and actual owner of four consignments of bundles of willow shipped from Bordeaux to New Fork on steamers under charter to respondent and under the respondent’s bills of lading.

<p>1. Criminal law <5=114—Jurisdiction of offense committed on high seas is dependent on “district into which offender is first brought.”</p> <p>The temporary stopping of a vessel on which defendants were held in custody at the quarantine station in the Eastern district of New York held not a bringing of defendants into that district, within the meaning of Judicial Code, § 41 (Comp. St. § 1023), providing that “the trial of all offenses committed upon the high seas * * * shall be in the district where the offender is found or into which he is first brought,” and the District Court of the Southern District of New York, where defendants were landed and arrested, held to have jurisdiction to try them for an oh'ense committed on the high seas.</p> <p>2. Criminal law <5=117016(2)—Permitting impeaching questions held harmless error.</p> <p>Permitting the prosecution to ask questions of its own witness which tended to discredit or impeach him, but the answers to which were unfavorable to the prosecution, if error, held not prejudicial.</p> <p>3. Criminal law «=393(2)—Diary of defendant, lawfully obtained by prosecution, admissible in evidence.</p> <p>Admission in evidence of a diary kept by one of defendants, which came lawfully into possession of the government, held not error.</p> <p>4. Criminal law '3=^404 (3)—Weapons used admissible in evidence.</p> <p>On trial of defendants, as officers of an American vessel, for unlawfully beating, wounding, and imprisoning seamen, clubs, brass knuckles, and knives found in defendants’ Quarters on the vessel, some of them identified as having been used in the assaults, held admissible in evidence.</p>

Appeals from the District Court of the United States for the Western District of New York. Suits in admiralty by William M. Tashenberg and another and by the American Steamship Company against the steamer Anna C. Minch ; the Kinsman Transit Company, claimant. Decrees for respondent, and libelants appeal.

<p>1. Equity @=32—That mortgaged property is in foreign country does not exclude jurisdiction to cancel mortgage.</p> <p>A federa] court of equity held to have jurisdiction of a suit to cancel a mortgage on real estate in Mexico, where complainant was a citizen and defendant an alien residing and served in the district of suit.</p> <p>2. Courts @=328(2)—Ik suit to remove cloud on title, value of property datennmes jurisdiction. ^</p> <p>In a suit to obtain cancellation of a mortgage as a cloud on the title of property alleged to exceed in value $3,000, the value of the property and not the amount conceded to be due and tendered in payment of the mortgage held, the amount in controversy for the purpose of federal court jurisdiction.</p> <p>3. Courts @=37(3)—Objection to jurisdiction waived by answering after motion to .dismiss.</p> <p>A defendant, who, though moving to dismiss on the ground that the bill did not show the jurisdictional amount involved, did not ask a hearing on the motion, but answered, claiming a much larger amount, and obtained a decree in his favor, from which lie does not appeal, cannot insist on want of jurisdiction.</p> <p>4. Judgment @=21—Amount must be stated in United States money.</p> <p>A federal court held without authority to render a judgment for a sum in money of a foreign country, or otherwise than in money of the United States.</p>

Suit in admiralty by the Olsen Water & Towing Company against the barge High Cliff; the Warner Sugar Refining Company, claimant. Decree for libelant, and claimant appeals.

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Suit in admiralty for collision by Ida M. Flannery, owner of the barge Howe, against the steam tug Progressive; with the tug Slatingtou impleaded. Decree against the Progressive alone, and her claimant appeals.</p>

Appeal^ from the District Court of the United States for the Southern District of New York. Suit by Fred de Gresac Maurel against Harry B. Smith and another, to determine her interest and rights in a certain dramatic and literary property, in the opera “Sweethearts,” and declaring the defendants trustees for the .plaintiff of the statutory copyrights held by them to the extent of an equal share with each of the defendants, Harry B. Smith and Robert Smith.

Sessions, Judge. Action by the Middle West Coal Company against the Benton Harbor-St. Joseph Gas & Fuel Company, in which the defendant asserted a counterclaim. Judgment for plaintiff, after objection to evidence in support of the counterclaim was sustained, and defendant brings error.

<p>In Error to the District Court of the United States for the Western District of Tennessee, at Memphis; John E. McCall, Judge.</p> <p>Action by T. H. Gerig against N. W. Calcutt and others. Judgment for plaintiff, and defendants bring error.</p>

Sanford, Judge. Suit by Jake Wells against the Princess Amusement Company and another. Decree for the complainant against the named defendant for a part only .of the amount claimed, and complainant and the named defendant appeal.

<p>1. Appeal and error <3=977(5)—Denial of new trial reversible only for abuse of discretion.</p> <p>An exercise of discretion by the trial judge in overruling a motion for new trial cannot be reviewed, but relief cam be had only for failure to exercise judicial discretion; that is, for an abuse of it.</p> <p>2. Appeal and error <3=994 (1), 995—Evidence cannot be weighed.</p> <p>The Circuit Court of Appeals cannot weigh the evidence or pass on the credibility of the witnesses.</p> <p>3. Sales <3=52(5)—Evidence held to sustain finding that acceptance of orders was conditional.</p> <p>In an action for refusal to deliver the coal ordered by plaintiffs, which orders plaintiff claimed defendant had accepted by partial deliveries thereof and by the course of dealing, evidence held to sustain the jury’s finding that the shipments were made on the assumption that pending negotiations for a contract for defendant’s entire output would ho consummated and that the acceptance was conditional on the consummation of those negotiations.</p> <p>4. New trial <3=77(1)—Prejudice of jurors against nonresident held not shown.</p> <p>Where plaintiffs and their attorneys were nonresidents of the district, but made no application for change of venue, the fact that the officers of the defendant coal company and its counsel were prominent residents of the mountain district of the state, and that the mountaineers (as asserted) were a clannish people, does not show that the verdict for the defendant was the result of the jurors’ prejudice, especially where it did not appear how many of the jurors were from the mountains, and plaintiff’s counsel disclaimed any suggestion that improper influences were intentionally brought to bear upon them.</p> <p>5. Evidence <3=110—Held admissible to show attempt to fabricate evidence of contract.</p> <p>In action for failure to deliver coal ordered by plaintiffs, where the defense was that the orders wore accepted only on condition that pending negotiations resulted in the sale of their output to plaintiffs, evidence that plaintiffs’ general manager had written a letter, the carbon copy of which he retained, so his files would show a contract for the output, while he destroyed the original, is admissible, though the witness could not give the language of the letter.</p>

<p>Patents <S=>32?—1,043,854, claims 1-3, 6, for cup dispensing device not infringed.</p> <p>The Luellen patent, No. 1,043,854, claims 1-3, 6, for a cup-dispensing device, as limited by the prior art, held not infringed.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Pennsylvania; J. Whitaker Thompson, Judge.</p> <p>Libel by the Charles D. Norton Coal Company against the steamship St. S. Angelo Toso. Decree for respondent, and libelant appeals.</p>

<p>1. Vendor and purchaser ©=>18(3)—Acceptance of option held unequivocal.</p> <p>A telegram by a party haying an option for purchase of land, which stated: “Will exercise our option. * * * Hail deed with dra ft. * * * Answer”—was an unequivocal acceptance of the option, and not merely an expression of future intention to accept, and therefore made the option a binding contract.</p> <p>2. Vendor and purchaser ©=>18(3)—Attorney's letter held not to make purchaser’s acceptance conditional.</p> <p>A letter by the purchaser’s attorney, dated the same day as a telegram accepting the option, which stated that the examination of the title liad not been concluded, but was being vigorously prosecuted, and expressed the hope of closing the transaction the next week, does not indicate that the acceptance of the option was conditional, even if the attorney had authority to modify the acceptance.</p> <p>S. Vendor and purchaser ©=>18 (3)—Acceptance of option within time sufficient, unless there is clear intent to resraire performance.</p> <p>Where an option for the purchase of land is given, time is usually made of the essence in so far as acceptance is concerned; but, unless it is the clear intention of parties to require acceptance and performance within the time limit, such limit does not relate to performance.</p> <p>I. Vendoi and purchaser <§=>75—Option held not to require performance within limited time.</p> <p>A 30-day option for the purchase of a large tract of land which contemplated the execution of the deed, a mortgage and notes for the purchase price, and the ascertainment of the amount of income and profit tax the vendor would have to pay, requires only acceptance within 30 days, and permits performance within a reasonable time thereafter, especially where the vendor so construed it by promising, in reply to telegram of acceptance, to send papers in a few days.</p> <p>Specific performance <®=>97(1)—Tender of performance by par chaser held unnecessary* where vendor stated he would not convey.</p> <p>Where the purchaser, within a reasonable time after exercising his option, was proceeding to have corrected defects in the title and in the abstract, and in good faith attempting to carry out the contract, when the vendor tendered a deed which contained unusual clauses, waiving purchaser’s rights under the state Constitution and laws which were not provided for in the option, and thereafter positively stated he would not convey the property, the failure of purchaser to tender payment of the purchase price did not defeat his right to specific performance.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Louisiana; Rufus E. Foster, Judge.</p> <p>Suit in equity by W. E. Eddy against the St. Charles Land Company. Decree for defendant, and complainant appeals.</p>

<p>Appeals from the District Court of the United States for the Eastern District of Louisiana; Rufus E. Foster, Judge.</p> <p>Suits in equity by Gustus Drummer and by C. Millieent Bash and Ethel Bash Field, as administrators, against the St. Charles Land Company. Decrees for defendant, and complainants appeal. Affirmed.</p>

Petition to Revise Order of the District Court of the United States for the Southern District of New York. In the Matter of Joseph Greenberg, bankrupt. Petition by the John Hancock Mutual Life Insurance Company to revise an order of the District Court. Greenberg became bankrupt while in possession of a policy of life insurance in the Hancock Company.

<p>I. Aliens <§=4>i—No timo limit in deportation oí alien convicted of cram© before entry.</p> <p>The provision of Immigration Act Feb. 5, 3917, § 19 (Comp. St. 101 tí, Comp. St. Ann. Supp. 19)9, § 4S?S0y< :i.j), limiting to five years the time within which an alien, who at the time of entry was a member of a class excluded by law, may be arrested for deportation, held not to apply to an alien who was convicted, or who admits the commission prior to entry, of a crime involving moral turpitude.</p> <p>2. Aliens '@=>40—Act of 1917 authorizes deportation of aliens entering before its passage.</p> <p>The provisions of Immigration Act Feb. 5, 1917, § 19 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 42891433)) relating to deporting of aliens, held retrospective with respect to aliens convicted, or who admit the commission prior to entry, of a crime involving moral turpitudé, and to authorize the deportation of such an alien who entered before its passage.</p>

Suit in admiralty by J. Aron & Co., Incorporated, against the Steamship St. Paul. The Hudson Navigation Company appeals from an order allowing wharfage. The St. Paul, while laden with cargo, was seized at the instance of numerous libelants (beginning in April, 1919), whose claims were ultimately consolidated into a cause entitled as above. Under process in that case the United State's marshal had custody of the vessel on June 11, 1919.

■ In Error to the District Court of the United States for the Southern District of New York. . Action at law by Pasquale Anzellotti against William G. McAdoo, Director General of Railroads. Judgment for plaintiff, and defendant brings error. Writ of error to judgment on verdict, entered in the District Court for the Southern District of New York, in an action for personal injuries, brought under federal Employers’ Liability Act (U. S. Comp. St. §§ 8837-8005).

<p>1. Seamen <8=>29(5) —Evidence held not to show owner’s negligence in car© oí steam pipe which burst.</p> <p>On libel to recover damages for the death of a seaman caused by a bursting pipe, evidence that; the pipes had been thoroughly tested a year before, and the vessel inspected a month before, and that after the explosion no flaw could be detected in the pipe, with expert testimony that sound pipes might be broken by suddenly turning .steam into a pipe containing water, hold not to show that the shipowner was chargeable with any negligence with reference to the pipe.</p> <p>2. Seamen 0=>29(2)—Owner does not insure safety of seamen.</p> <p>The American rule allowing indemnity for the death of a seaman resulting from unseaworthiness of the vessel does not make the owner ot the vessel an insurer of all the appliances on the vessel, so that there can bo no recovery for the death of a seaman caused by a bursting steam pipe, where there was no evidence to establish negligence of the vessel owner with reference to that pipe.</p>

<p>Seamen <S^>20(5)—Injury not shewn to have been duo to uriseawortiiiness of ship.</p> <p>Evidence held insufficient to show that injury to a seaman by the falling of a hatch cover on his hand wras due to unseaworthiness of the ship, in that the stick or block furnished for use to hold up the cover when raised for ventilation was worn and defective.</p>

<p>In Error to the District Court of the United Slates for the District of New Jersey; Charles F. Eyncli, Judge.</p> <p>Action at law by Vito Eosquadro against the Hudson Consumers’ Ice Company. From the judgment, plaintiff brings error.</p>

In the matter of Charles T. Stork & Co., Incorporated, bankrupt. On appeal by Samuel D. Reidesdorf and Raymond H. Sarfaty, receivers, from an order of the District Court. Prior to October, 1919, the bankrupt corporation transacted business in New York City (infer alia) by buying for resale abroad many articles of merchandise.

<p>In Error to the District Court of the United States for the Eastern District of New York.</p> <p>Criminal prosecution by the United States against Samuel Epstein. Judgment of conviction, and defendant brings error.</p> <p>Epstein was the president and in control of the affairs of the Locust Building Company, Incorporated, and subsequently of the Beta Building Company, both of which concerns were engaged in obtaining land, building thereon, and disposing of' the buildings, if they could, in the borough of Queens. The Locust Company went into bankruptcy, and Epstein as its president was summoned, or appeared, to testify in respect of the “acts, conduct, and property” of the bankrupt before a special commissioner of the District Court for the Eastern District, pursuant to section 21a of the Bankruptcy Act (Comp. St. § 9605a). His testimony before such commissioner resulted in an indictment for perjury (United States Criminal Code, § 125 [Comp. St. § 10205]), wherein he was charged as follows:</p> <p>In count 1, mat he'had willfully, etc., deposed before said commissioner that the Locust Company was forced to permit the foreclosure of a certain mortgage on property owned by it, because said Locust Company could not use any of the money received from the raising of certain mortgages, viz. $17,500, because the mortgagee did not pay to Epstein any money, but said mortgagee itself paid certain bills with said money.</p> <p>In count 2, that he in like manner deposed on a subsequent day of hearing that Locust Company had sold to Beta Company certain property belonging to the former, and that said Beta Company bad paid to Locust Company, as part of the consideration for such sale, $10,000 in cash.</p> <p>No complaint is made of the formal parts of the indictment, which in due form charged the matters required by the statute above rererred to. After a protracted trial the jury returned Epstein guilty as charged, whereupon he took this writ.</p>

Petition for Mandamus to the District Court of the United States for the District of New Jersey; John Rellstab, Judge. Petition by the Raritan Copper Works for writ of mandamus to compel Hon. John Rellstab, United States District Judge, to set aside his order, vacating a previous order, which dismissed without prejudice the suit for infringement of a patent by Elmer G. Elliott and another against the petitioner.

<p>In Error to the District Court oE the United States for the Eastern District of Kentucky; Andrew M. J. Cochran, Judge.</p> <p>Action by John P. Crabtree against the American Railway Express Company. Judgment for plaintiff, and both parties bring error.</p>

<p>Appeal from the District Court of the United States for the Northern District of Alabama; William I. Grubb, Judge.</p> <p>Suit by Felix M. Drennen, as receiver for the American Mortgage & Loan Company, against Sumter Cogswell and others. From a decree for complainant, defendants appeal.</p>

<p>1. Criminal law <£=>1159(2)—Weight oí evidence cannot be reviewed.</p> <p>On writ of error in a criminal cause, or in an action at common law, it is beyond the power of the appellate court of the United States to review the weight of the evidence.</p> <p>2. Criminal law <£=>1129 (1)—Unassigned error reviewed only to prevent plain injustice.</p> <p>The power of the court to notice plain error not assigned in criminal eases is not to be exercised as a matter of right, but is used only to prevent plain injustice.</p> <p>3. Criminal law <£=>508 (3), 1137(5)—Defense by blaming others not subject to objections as accomplice testimony.</p> <p>In a prosecution for receiving goods stolen from a railway car, where each of the three defendants took the stand and attempted to show the guilt of the others, no defendant can complain that the aggregate of their efforts benefited only the prosecutor, and their testimony was not open to the objection usually made to that of accomplices.</p> <p>4. Criminal law £=>370, 371(2)—Receipt of other stolen goods admissible to show intent and knowledge.</p> <p>In a prosecution for receiving goods shipped in interstate commerce which had been stolen from a railway car, evidence that accused had been concerned in handling for profit other shoes proved to have been also stolen from cars at the same place and about the same time was competent for the purpose of showing intent and guilty knowledge.</p> <p>5. Receiving stolen goods <3=3, 8(4)—Guilty knowledge an element and may \ be proved hy circumstantial evidence.'</p> <p>The essence of the crime of receiving goods shipped in interstate commerce which had been stolen from a railway car is guilty knowledge that they were so stolen, and such knowledge by accused must be shown by competent, though perhaps by circumstantial, evidence.</p> <p>6. Criminal law ©=822(1)—Charge construed as a whole.</p> <p>The charge of the court in a criminal prosecution is to be taken as a whole, especially in the absence of any exception to such parts of it as might be construed as bearing too hardly on defendant.</p> <p>7. Criminal law <3=823(9)—Charge knowledge that goods were stolen was</p> <p>presumed from possession held cured by other statements.</p> <p>In a prosecution for receiving goods shipped in interstate commerce which had' been stolen from a railway car, a statement in the charge that possession of the stolen property recently after the theft justified' the inference of guilty possession, which might, in the absence of explanation, authorize an inference of criminal connection with its acquisition, to which no. exception was taken, does not require reversal, where the court elsewhere explicitly charged that the mere possession was not enough to establish guilty knowledge.</p> <p><@zs>For other cases see same tonic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Criminal law <©=>1159(2)—Weight of evidence cannot be reviewed.</p> <p>In a criminal prosecution, the Circuit Court of Appeals cannot review the weight of the evidence.</p> <p>2. Criminal law <©=>1148—Denial of separate trial reviewable only for abuse of discretion.</p> <p>The refusal of the trial judge to grant a separate trial to two of the three defendants is a matter of discretion, reviewable only where abuse of such discretion is shown.</p> <p>3. Criminal law <©=>622 (2)—Objection to atmosphere created by codefendant does not entitle to separate trial.</p> <p>The fact that two defendants asking a separate trial did not like the atmosphere created by the presence of the third defendant before the jury does not authorize reversal of conviction for refusal of the separation.</p> <p>4. Criminal law <©=>656 (8) —Court’s comment in denying directed verdict held not expression of opinion on facts.</p> <p>Statements by the court, during a discussion with counsel on the motion to direct an acquittal, that there were other circumstances pointing to the asserted guilty knowledge of defendants, is not such an expression of the opinion on the facts as requires a reversal of the conviction.</p> <p>5. Criminal law <©=>673 (4) —Evidence may be admitted as against certain defendants only.</p> <p>In a prosecution against three defendants, it was not error for the trial court to admit evidence only as against certain of the defendants, and not as against the others.</p>

<p>Bankruptcy <3= 184(1)—Chatfdl mortgage on automobile kept by mortgager for sale void against his trustee.</p> <p>Under the law of Florida that a chattel mortgage on merchandise, though recorded, is void as against creditors of the mortgagor, if ho is authorized by agreement or understanding with the mortgagee to retain possession of and sell the mortgaged property, a mortgage on an automobile, given by a dealer, who by permission of the mortgagee kept it in his salesroom for sale until his bankruptcy, held void as against his trustee, under Bankruptcy Act, § 47a (Comp. St. § 9681).</p>

<p>Appeal from the District Court of the United States for the Western District of Louisiana; George W. Jack, Judge.</p> <p>Suit for specific performance by J. William Barnes against the Red Bayou Oil Company, Incorporated. From a decree dismissing the bill, complainant appeals.</p>

<p>In Error to the District Court of the United States for Ihe Southern District of New York.</p> <p>Action at law by Eugene D. Keeveny against Charles R. McCormack & Co. Judgment for plaintiff, and defendant brings error.</p> <p>This case is here again after the retrial directed in Keeveny v. McCormack, in 266 Fed. 314. All of the facts stated in that report were again (in substance) proved. It now appears that by bill of particulars the plaintiff Keeveny specifically alleged that the ready, able, and willing purchaser by him procured was Theodore Dougherty.</p> <p>There was evidence at this retrial tending to show that Dougherty was purchasing the vessel for himself and was able by the assistance of or through his firm of 3. F. Whitney & Co. to procure the full purchase price of $460,000 when and as it became due. The court charged the jury in substance that it was for them to say whether, “when Dougherty’s name was submitted by Whitney & Co. to [defendants below] they accepted him as the purchaser of this ship, and were willing to deal with him as being a man ready, willing, and able to perform the contract.”</p> <p>The jury by their verdict found in effect that defendants below had accepted Dougherty as such purchaser. There being a general verdict for plaintiff for the commissions claimed under the second cause of action (see 266 Fed. 315), judgment was entered accordingly, and McCormack & Co. brought this writ.</p>

McCall, Judge. Henry Howard and others were convicted of illegally distilling liquor contrary to the statutes relating to internal revenue, and they bring error.

Suit in equity by Carl J. Weidcman against the Newton Arms Company, Incorporated. Appeal by The Manufacturers’ & Traders’ National Bank of Buffalo and another intervened. From an order of the District Court, interveners appeal. Defendant corporation, being insolvent in tlie sense of inability to pay irs current obligations as they matured, passed into the hands of a receiver appointed under a creditors’ conservation bill.

<p>Death <©=>103(2)—Nonsuit held proper in action for death of soldier, struck by train while on sentry duty.</p> <p>In an action for the death of a national guardsman, found dead near a railroad bridge where he had been doing sentry duty for a week or ten days, and presumably struck by a train, a nonsuit was properly granted, where there was no evidence that trains 'were operated any different on the night he was killed from their usual and normal operation; the only reasonable inference being that his death was due to his own negligence in failing to keep a sharp lookout as his duties required.</p>

<p>Shipping <@=>140—Liability for loss of cargo limited by bill of lading.</p> <p>A provision of a bill of lading that it is mutually agreed that the value of each package does not exceed £20, on which basis the freight is adjusted, and that the vessel’s liability shall not exceed such sum, unless a value in excess is specially declared on in a shipping note, and extra freight paid as agreed on, held to govern, and limit the carrier’s liability in all cases where the shipper, on shipment, has not declared the value of the goods, to the exclusion of all other provisions for ascertaining the value of goods lost or damaged.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Suit in equity by Clifford E. Treat against the Redtop Electric Company, Incorporated.' Decree for complainant, and defendant appeals.</p>

<p>Admiralty —Findings on oral testimony binding on review of cause of injury to scow.</p> <p>A finding by a trial court, on oral testimony of witnesses in open court, that injury to libelant’s scow, chartered with its master to respondent, was due to the negligence of the master in failing to breast the scow out from a wharf where it lay, which allowed it to settle on an uneven bottom, will not be disturbed by an appellate court.</p>

<p>In Error to the District Court of the United S fates for the Southern District of New York.</p> <p>Action at law by Roland R. Batson against Juan Bianchi Rosofa and others. Judgment for defendants, and plaintiff brings error.</p>

<p>1. Insurance '3=’435—Policy required by statute from auto bus owner limited to car described.</p> <p>Under Act N. J. March 17, 1916 (P. D. 283), providing that no auto bus shall be operated in the streets of a city until the owner shall obtain a license therefor from the city authorities, which shall be issued only on the filing by such owner of an insurance policy covering legal liability for any injury or death caused by the use of such auto bus both the license and the insurance policy are limited to the particular car named therein and the insurer” cannot be held liable for an injury caused by a different car operated by the same owner.</p> <p>2. Insurance <S=>175—Antedating transfer of policy to different subject held not to create liability for previous loss.</p> <p>The indorsement, by an agent on a policy insuring against liability on account of injuries caused by an automobile, of its transfer to a different car, and the dating of the transfer back to a prior date, at request of the owner, held not. to impose liability on the insurer for an injury caused by such substituted car previous to the actual transfer and not then known to either the company or its agent.</p>

<p>In Equity. Suit by the International Railway Company against George G. Davidson, Jr., Collector of Customs. On motion for injunction.</p>

<p>In Equity. Suit by the Niagara Falls International Bridge Company and another against George D. Davidson, Jr., Collector of Customs. On motion for injunction.</p>

<p>Patents ‘®=>328—1,268,601, claims 6, 7, 12-15, and 1,268,602, for improvement in agitating means, held invalid.</p> <p>The Nielsen patents, No. 1,268,601, claims 6, 7, 12-15, and No. 1,268,002, for improvements in means for agitating the contents of a tank by an agitator resembling an ordinary screw propeller, held invalid, considering the state of the prior art.</p>

<p>In Equity. Suit by the Michigan Central Railroad Company against the Michigan Public Utilities Commission, Merlin Wiley, Attorney General of Michigan, and others. On motion for preliminary injunction.</p>

<p>1. Aliens <©=>68—Petitioner for naturalization has burden to meet all statutory requirements.</p> <p>The burden of proof rests on a petitioner for naturalization affirmatively to establish by relevant, material, competent, positive, and direct evidence that he has fully met the requirements of the statute.</p> <p>2. Aliens <©=>62—Naturalization applicant must show understanding’ of petition.</p> <p>A petitioner for naturalization cannot he held “attached to the principles of the Constitution of the United States and well disposed to the good order and happiness of the same,” where, though alleging in his petition that he is “not a disbeliever in or opposed to organized government,” or affiliated with any organization opposed to organized government and “not a polygamist nor a believer in polygamy,” he testifies that he does not know the meaning of the words “anarchist” or “polygamy.”</p>

<p>At Law. Action by Mary R. Shepherdson against the United States. Judgment for plaintiff.</p>

<p>In Equity. Suit for infringement of a patent by Jessee Mercer White against the Goodrich-Lenhart Manufacturing Company. Sur trial hearing on' bill, answer, and proofs.</p>

<p>In Admiralty. Suit by the Buenos Aires Great Southern Railway-Company, Limited, against the bark Pehr Ugland.</p>

<p>Libel by the United States against the motor vessel Santa Elena.</p>

<p>Patents <5=328—822,723, for ball bearings, not infringed.</p> <p>The Conrad patent, No. 822,723, for improvement in ball bearings, held not anticipated and valid, but not infringed by the regrinding of the grooves of old bearings, and, where required, substituting new balls to ñt the grooves enlarged by the regrinding, which is within the right to make repairs.</p>

<p>Criminal law <§=>37—Violation of statute induced by government agent not ground for conviction.</p> <p>A manufacturer of a medicinal preparation held not chargeable with violation of Food and Drugs Act, § 2 (Comp. St. § 8718), and section 8 as amended by Act Aug. 23, 1912, and Act March 3, 1913 (Comp. St. § <8724), by the shipment of a misbranded article in interstate commerce, where the only shipment of such character shown was on an order sent from another state, for the purpose of entrapment by a government agent, who had no reason to suppose that defendant had ever previously made such a shipment.</p>

<p>Maritime liens @=>28—Eight to lien for coal furnished on order of charterer.</p> <p>Libelant, who furnished coal to a steam lighter under charter requiring her return free from any liens accruing during the charter period, on orders from one representing both charterer and owner, who told him of the charter, held entitled to a lien under Act June 23, 1910, §§ 1, 3 (Comp. St. §§ 7783, 7785).</p>

<p>In Admiralty. Suit by the Piedmont & Georges Creek Coal Company against the fishing steamer Walter Adams. On libelant’s objection to clerk’s taxation of costs. Overruled.</p>

At Faw. Action by Fouis W. Fmerick, as receiver of the McDermott Contracting Company against the Oswego Falls Pulp & Paper Company. On demurrer to the complaint of the above-named plaintiff, who seeks to recover on a debt owing to the McDermott Contracting Company for work, labor, and materials, and which claim was assigned to said company by the Fulton Contracting Company. Four grounds of demurrer are interposed, and were brought on for argument on or about May, 1920.

<p>Appeal from Supreme Court of the District of Columbia.</p> <p>Garfield Preleau was convicted of robbery, and he appeals.</p>

Suit for mandatory injunction by the Diamond Coal & Coke Company of Wyoming, a corporation, against John Barton Payne, Secretary of the Interior, and others. From a decree dismissing the bill for want of equity, complainant appeals.

<p>Appeal from the Supreme Court of the District of Columbia.</p> <p>Action by the Security Savings & Commercial Bank against James T. Ryan. Judgment for plaintiff, and defendant appeals.</p>

Petition for mandamus by the United States, on the relation of Eugene R. Russell and another, against the District of Columbia and the Commissioners thereof. From a judgment discharging the rule and dismissing the petition, after demurrer to the answer was overruled, relators appeal.

<p>1. District of Columbia <$=>14—Liable for breach of authorized contract for which there was an appropriation.</p> <p>The District of Columbia is liable to a contractor for his loss of profits resulting from the District’s breach of its contract to employ the contractor for street repairs, where the contract was originally authorized by an act of Congress, and there- was an appropriation by Congress sufficient to have covered the work.</p> <p>2. District of Columbia <S=>14—Provision for orders by engineer does not authorize refusal of contracted work.</p> <p>In a contract whereby the District gave to a contractor the work of repairing its streets, a provision that such work should be done subject to orders from the engineer commissioner does not relieve the District from liability for breach of the contract, though the engineer gave no orders for the work which was done by the District itself, since the provision merely gave the District the right to keep a reasonable control over the work, and was not intended as a door by which it could escape from its obligation.</p> <p>3. District of Columbia <$=>14—Broach of street contract for economy is not an exercise of police power.</p> <p>Where the District of Columbia chose to do its own street repair work in violation of a contract giving such work to a contractor, on the ground of economy, it cannot avoid liability on the claim that the contract was subject to supervising control of Congress in the exercise of the police power.</p> <p>4. District of Columbia <$=>14—Breach of contract for street repair held not directed by Congress.</p> <p>An act of Congress authorizing the District to do its own street repair work was not a direction by Congress to the District to violate its contract giving such work to a contractor, so that the District cannot defend an action by the contractor on the ground that Congress can enact a law impairing the obligation of the contract.</p> <p>5. District of Columbia <$=>14—Breach of contract during additional year held not waived.</p> <p>Where the District had entered, into a contract with the company for the latter to do certain street work, including repair work, for two years, with an option to the District to renew the contract for anotner year, and the District before the end of the two years breached the contract by doing its own repair work, and thereafter exercised its option to extend the contract for the additional year, to which the company replied it would insist on having .repair work or damages for not being allowed to do it, the company did not waive its right to- damages for loss of profits on the repair work during the extended term by performing the other part of the contract during that term.</p>

Paul Pearson was charged by information with selling refreshments without having obtained a license so tó do, and, after the court granted his motion to quash the information on an agreed statement of facts, the District of Columbia brings error.

<p>1. Judicial sales <S=»27 (1)—Purchaser not required to take title based in part on adverse possession.</p> <p>Where the auctioneer appointed by the trial court to sell real estate cried a good record title as to each piece of property described in the offer of sale, a title to a portion of one of the tracts, not good of record, but sound through the operation of adverse possession, is not the title which was paid for by the purchaser.</p> <p>2. Vendor and purchaser <§=139 (2)—Purchaser not required to take risk of title litigation.</p> <p>A purchaser is not bound to accept the risk of litigation with respect to a title which was represented to him as free from flaw.</p> <p>3. Judicial sales <§=27 (1)—Purchaser relieved from bid or doubt as to title to portion.</p> <p>The purchaser will be released from a bid made at a sale conducted by an auctioneer appointed by the court, where there was substantial doubt as to the title to a portion of the property for which the bid was made, the court, in proceedings to compel him to take the property, not undertaking to determine the validity of such a title.</p>

<p>Appeal from the Supreme Court of the District of Columbia.</p> <p>Action by Allen B. Sprague against the Columbia Aid Association, and another. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from the Supreme Court of the District of Columbia.</p> <p>Action by the District of Columbia, to the use of Frank Langellotti, against the Fidelity & Deposit Company of Maryland, a corporation. Judgment for defendant on a directed verdict, and plaintiff appeals.</p>

In the matter of one Collins, bankrupt. Mrs. Isabel Danziger Miller and others appeal from an order in favor of C. C; Hartwell Company, Limited, and others.

<p>Appeal from the District Court of the United States for the District of Massachusetts; George W. Anderson, Judge.</p> <p>Suit by the Manton-Gaulin Manufacturing Company against the Wright-Ziegler Company and others. From a decree for defendants, plaintiff appeals.</p>

<p>Appeal from the District Court of the United States for the District of Massachusetts; George W. Anderson, Judge.</p> <p>Suit in equity for alleged unfair trade competition by the Walker Bros. Company against W. & H. Walker, Incorporated, and others. Decree for plaintiff, and defendants appeal. Reversed and remanded, with directions to dismiss the bill.</p>

<p>1. Internal revenue '@=9—Association to grubstake corporation in securing munitions contract held not taxable “person.”</p> <p>A corporation and two individuals, who had advanced money to it to apply on the expenses of a trip by its president to England to secure a munitions contract, and who gave the bond required to secure the contract, under an agreement whereby they were to receive a proportion of the profits of the corporation received from the manufacture of munitions under the contract, but who had no control over such manufacture, merely agreed to grubstake the corporation and did not form a partnership with it in the manufacture, so that the corporation, and not the association of the three, was the taxable person, within munition manufacturer’s tax provision of Act Sept. 8, 19.10, § 300, which defines “person” as including partnerships, corporations, and associations.</p> <p>[Ed. Note.—For other definitions, seo Words and Phrases, First and Second Series, Person.]</p> <p>2. Internal revenue <3=9—Corporation liable for munitions tax, regardless of disposition made of profits.</p> <p>A corporation manufacturing munitions is liable for the munition manufacturer’s tax on all profits realized by the manufacture and salo of such munitions, even though, in pursuance of a previous agreement, it distributed a portion of such profits to two individuals, who had advanced money to enable it to secure the contract.</p>

<p>1. Shipping <§=175—Rule is reasonable diligence by charterer in loading is sufficient.</p> <p>In the absence of a provision fixing lay days, a charterer is required only to load with reasonable diligence, to be determined by the conditions which affect the- work of loading; but the rule of reasonable diligence applies only to the actual loading, and does not excuse for failure to have a cargo ready to load.</p> <p>2. Shipping <§=178—Charter; delay in furnishing cargo not excused by strikes.</p> <p>A charterer held not excused for failure to furnish a cargo of lumber on time because of a charter provision excepting strikes or any other hindrances beyond the control of either party, where, although there were strikes after the contract was made, they ceased to affect the production of the mills more than a month before the time for loading.</p> <p>3. Shipping <§=175—Demurrage not claimable until ship is at loading place.</p> <p>Before demurrage can be claimed, the ship must be at the place of loading contemplated by the charter party, unless prevented through active fault of the charterer.</p>

Appeals from the District Court of the United States for the Southern District of New York. Suit in admiralty by William Kenny against the steam tug W. H. Baldwin; the Cornell Steamboat Company, claimant. Decree for libelant, and claimant appeals.

<p>1. Seamen <§=>29 (4)—Careless handling of needle by seaman held cause of injury to his eye.</p> <p>Injury to a seaman, caused by his piercing bis eye with a needle while mending a sail, held on the evidence not due to any fault or negligence which rendered the ship unseaworthy, but to the careless manner in which he handled the needle.</p> <p>2. Seamen <§=>29 (1)—Owner not liable for injury, through negligence oí officers.</p> <p>The owner of a vessel is not liable in damages for injury to a seaman resulting from the manner in which certain work was done, though it was by direction of an officer of the ship.</p>

Separate actions by David Fruchter, an infant, by Jennie Fruchter, his guardian ad litem, and by Sam Fruchter, against the New York, New Haven & Hartford Railroad Company. Judgment for plaintiff in each action, and defendant brings error. Certiorari granted, 254 U. S.-, 41 Sup. Ct. 449, 65 F- Fd. -—.

Suit in admiralty by Charles A. White, administrator of the estate of Calogero Falzone, deceased, against the John W. Cowper Company, Incorporated. Decree for libelant, and respondent appeals.

Dietrich, Judge. Suit by the Twin Falls Oakley Land & Water Company, a corporation, against John H. Martens and others, to foreclose a lien. Held: concluded that there were 27,000 acres within the project, upon which the company has contracts, and to which it is under agreement to furnish water.

<p>1. Larceny <3=30(1)—Indictment mot insufficient for failure to specify number of articles stolen.</p> <p>Counts in an indictment under Act Feb. 13, 1913, § 1 (Comp. St. £ 8603), charging defendants with receiving and having in possession a large number of tierces of lard, the exact number being to the grand jurors unknown, which constituted a part of an interstate shipment, knowing that the same had been stolen, held not insufficient because they did not specify the number of tierces.</p> <p>2. Indictment and iEtomaiion <©=181—Not valid objection that description of property is broader than proof.</p> <p>It is no valid objection to an indictment that the description of the property in respect of which the offense is charged to have been committed is broad enough to include more than the proof specifically shows.</p> <p>3. Criminal law <2=1056(1)—Instructions not excepted to are not reviewable.</p> <p>Instructions to which no exception is noted are not reviewable, though error is assigned thereon.</p>

<p>Í. Exemptions <^48 (3)—Fishermen’s wages not subject to garnishment.</p> <p>The provision of Itev. Daws Hass. c. 189, § 31, authorizing seizure under trustee process of wages of fishermen, held void, as in contravention of Seamen’s Act March 4, 1915, § 12 (Comp. Sf. § 8325a).</p> <p>2. Seamen —State attachment not “sufficient cause” for refusal to pay wages.</p> <p>Under Seamen’s Act March 4, 1915, § 3 (Comp. St. § 8320), providing (hat every master or owner who refuses or neglects to pay a seaman his wages at the time therein required without sufficient cause shall pay him a sum equal to two days’ pay for each and every day during which payment is delayed, and in view of the express provision of section 12 of the act (Comp. St. § 8325a), that seamen’s wages shall not be subject to attachment or arrest from any court, the service of trustee process from a state court is not “sufficient cause” for refusal to pay a seaman his wages, and does not protect the owner from liability for the additional payment required by the statute.</p> <p>[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Sufficient Cause.]</p>

Action by John W. Keogh against the Chicago & Northwestern Railway Company and others. Judgment for defendants, and plaintiff brings error. This writ of error was sued out by plaintiff to reverse the judgment in favor of the defendant in the District Court. He brought his action to recover threefold damages under the provisions of the Sherman Anti-Trust Act (Comp. St. § 8820 et seq.).

<p>1. Contracts <§=147(1,2), 169—Unambiguous contract construed from terms.</p> <p>Tlie cardinal rule in construing a contract is to ascertain the intention of the parties, and where its terms are clear and unequivocal, the intent must be determined from its contents alone; but where the language is ambiguous, or susceptible of several significations, its meaning may be found in the subject-matter viewed in the light of the circumstances.</p> <p>2. Contracts <@=>143—Terms expressing workable arrangements cannot be added to.</p> <p>Where the language of a contract expresses a reasonable and workable arrangement, such as men in the respective positions of the parties would enter into with reference to the subject-matter in the light of the circumstances, the court cannot go outside of its terms to find something different or better, which it might think the parties intended, but had not expressed.</p> <p>3. Contracts €=201—Held to require specified deliveries in each month without credit for excess in previous months.</p> <p>In a contract whereby a shirt manufacturer having a government contract secured the agreement of another to devote his factory exclusively to finishing shirts from material cut by the manufacturer, a provision requiring a stated amount of material to be furnished before the work began, and thereafter an amount to be furnished each month equal to the number of finished shirts received during the preceding month, requires the manufacturer to deliver each month the amount so determined, without crediting on such deliveries the excess of materials previously delivered.</p> <p>4. Contracts <@=172—Provision for payments for deficiency in delivery held not to relieve from undertaking to deliver.</p> <p>In a contract which required plaintiffs to deliver to defendants material to be made into snirts equal in amount to the number of finished shirts shipped by defendant during the preceding month, a-provision requiring plaintiffs to pay defendants a stated sum if the material delivered fell below the minimum weekly x-equirement was a provision for the benefit of defendants, of which they alone could avail themselves, and did not relieve plaintiffs from performance of their obligation to deliver the quantities agreed.</p> <p>5. Contracts <@=278 (1)—Plaintiff’s breach held to justify nonperformance by defendant.</p> <p>Where plaintiffs failed to deliver to defendants the stipulated quantity of shirt material, to be made into shirts by defendants for plaintiffs, plaintiffs cannot recover for defendants’ subsequent refusal to perform the contract, though, under the influence of a rising market, defendants took advantage of the situation to get out of the contract.</p>

<p>In Error to the District Court of the United States for the Western District of New York.</p> <p>Henry Boehm was convicted of the theft of property of the United States, and he brings error.</p>

Petition was filed by Henry Powell Ramsdell and others, executors, etc., as owners of the ferryboat Orange, for limitation of liability of said ferryboat for loss, damage, and injury resulting from a collision between the ferryboat Orange and the steamship Rensselaer. A decree was entered limiting the liability and holding the Rensselaer solely at fault for the collision, and restraining the claimants from further prosecuting such claims against the Orange.

In Admiralty. Separate libels by the Erie Railroad Company against the steamer Plymouth, the New England Steamship Company, claimant, in which the steamer Northland, the Eastern Steamship Corporation, claimant, was brought in under the fifty-ninth rule, and by the New England Steamship Company against the steamer Northland, the Eastern Steamship Corporation, claimant, in which the steam tug Albert J. Stone was brought in under the fifty-ninth rule.

<p>In Error to the District Court of the United States for the Eastern District of Wisconsin.</p> <p>Action by Alexander J. May against Patrick Glynn. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Bankruptcy <§=117 (2)—Bankrupt may make valid transfer after filing of petition.</p> <p>The title to a bankrupt’s property remains in him until his adjudication, and a transfer of property by him after filing of the petition, but before adjudication, is not necessarily void.</p> <p>2. Bankruptcy <§=165 (3)—Payment by bankrupt .for value received at the time not a “preference.”</p> <p>Where bankrupt, a broker, on the day of the filing of his petition in bankruptcy, obtained delivery of bonds at his office by messenger on promise of cash payment, a check given in part payment on the same day, though after filing of the petition, held not a “preference,” under Bankruptcy Act, § 60a (Conap. St. § 9644), for preference implies paying or securing a pre-existing debt of a person preferred, and where one gives an insolvent person value for a transfer of property, or where he makes an exchange of property, there is no preference.</p> <p>[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Preference.]</p>

Woodrough, Judge. Action at law by the Chicago, Rock Island & Pacific Railway Company against Fred L. Kimball and others, partners as Kimball Bros. Judgment for plaintiff, and defendants bring error.

<p>In Error to the District Court of the United States for the District of Kansas; John C. Pollock, Judge.</p> <p>Action at law by W. S. Fleming against J. O. McClay. Judgment for plaintiff, and defendant'brings error.</p>

<p>Bankruptcy <3=423 (2) —Liability for misappropriating proceeds of assigned accounts not released by discharge.</p> <p>Where plaintiff furnished defendant fertilizer for sale, under an agreement that it was to remain plaintiff’s property until sold or settled for, and that all proceeds of sales, including accounts and collections, were to be held for its use and to be its property until all indebtedness was paid, and accounts from sales wore assigned to plaintiff, but collected by defendant, defendant’s liability, in suit for conversion for misappropriating the proceeds of collections, was not one released by defendant’s discharge in bankruptcy.</p>

Morton, Judge. Libel by John J. Matheson and others against the steamer, Lake Monroe; the United States, claimant. From a decree dismissing the libel (270 Fed. 858), libelants appeal.

<p>In Equity. Suit by Rogers Brown & Co. against the Tindel Morris Company, in which receivers were appointed. On a motion for a restraining order to prevent the sale of bonds of defendant company, pledged by it to Fidelity Trust Company as collateral security for the defendant’s note for a smaller amount.</p>

<p>Railroads <3=351é, New, vol. 6A Key-No. Series—Action under Transportation Act removable.</p> <p>An action of tort brought against the Director General of Railroads, or the agent appointed under Transportation Act Feb. 28, 1920, § 206a, based on a cause of action arising out of the operation of a railroad while under redera! control, held removable as one arising under the laws of the United States.</p>

<p>1. Injunction <§=»105(1)—Unfounded criminal prosecution restrained, to prevent multiplicity of suits and irreparable injury.</p> <p>A continuing- course of conduct in instituting prosecutions, not supported by a valid constitutional law or ordinance, or in excess of authority conferred by any valid law or ordinance can be enjoined, to prevent the multiplicity of actions, which would he necessary to redress the continuing wrongs, and to prevent irreparable injury by the infliction of damages not susceptible of accurate ascertainment at law.</p> <p>2. States <®=:>191(2)—United States <§=>125—Suit to restrain unauthorized prosecution held not suit against state or United States.</p> <p>Institution of prosecutions, unsupported by a valid constitutional law, or in excess of authority conferred by law, by either a federal, state, or municipal officer, is regarded as in excess of the authority vested in the officer, so that a suit to restrain such a prosecution is not a suit against the United States or a state.</p> <p>3. Libel and slander —Obscenity <§=^7—Publication of article attacking Jews is not obscene or scandalous.</p> <p>A publication of articles in a paper, attacking the Jews as a race, is not indecent, obscene, or scandalous, within a city ordinance prohibiting the offering for sale of a publication containing indecent, obscene, or scandalous articles.</p> <p>4. Municipal corporations <S=>622—City cannot forbid in advance sale of publication because of prohibited articles.</p> <p>The limit of a city’s power to enforce an ordinance prohibiting the sale of obscene or scandalous publication is to conduct a prosecution for the specific offense thus committed. It cannot, by establishment of a censorship in advance of future publications, prohibit generally the sale thereof upon the streets.</p> <p>5. Newspapers —Sale of paper attacking Jews cannot be prohibited, to prevent breaches of the peace.</p> <p>The sale of a newspaper containing articles attacking the Jews as a race cannot be prohibited on the streets of a city, under an ordinance forbidding the sale of publications tending to promote breaches of the peace, since it cannot be assumed that members of that race will resort to violence to stop the sale, or that others will be thereby incited to commit violence against the Jews.</p> <p>6. Constitutional law <S=>90—Prohibiting sale of paper attaching race violates freedom of the press.</p> <p>The action of the city officials in prohibiting the sale on city streets of newspapers containing articles attacking the Jewish race, because of disapproval of those articles, is a violation of the right of the freedom of the press.</p>

At Law. Action by Savino Cassarello, executor under the will of Patrick Cilleto, sometimes known as Patrick Chilant, against the United States, to recover installments due under a certificate of War Risk Insurance. Judgment rendered for plaintiff for only the installments which became due before the death of his testator.

<p>1. Habeas corpus «3=538—Minor of enlistment age cannot obtain release by habeas corpus, but nonconsenting parents may obtain relief.</p> <p>A minor of the authorized enlistment age cannot, after having enlisted, obtain his release from military service by a writ of habeas corpus; but nonconsenting parents may by timely application secure his release.</p> <p>2. Army and navy <S=>44(3)—Right of parent or guardian to custody is subordinate to right to hold for military offenses.</p> <p>If a minor, enlisting without the required consent of his parent or guardian, has committed an offense triable by court-martial and punishable by military law, the right of his parents or guardian to his custody and services is subordinate, to the right of the military officers to hold him to answer for such offense.</p> <p>3. Army and navy <&=>18—Statute relative to enlistment in time of peace not applicable.</p> <p>Act Aug. 1, 1894, § 2 (Comp. St. § 1888), providing that in time of peace no person not a citizen of the United States shall be enlisted, is not now applicable; the United States not being at peace.</p> <p>4. Army and navy <§^>18, 44(2)—Alien may not avoid enlistment, because statute prohibited enlistment.</p> <p>Under Act Aug. 1, 1894, § 2 (Comp. St. § 1888), prohibiting the enlistment of aliens in time of peace, the United States alone may plead the disability of an alien, duly enlisted in time of peace, to avoid the enlistment contract, and the alien cannot obtain his discharge by habeas corpus, and escape liability for offenses against the military law under that section.</p> <p>5. Army and navy <§=18—Revised Statutes, as to enlistment without consent of parents or guardian, held superseded.</p> <p>Rational Defense Act, June 3, 1916, § 27 (Comp. St. § 1885a), providing that no person under 18 shall be enlisted or mustered into the military service without the written consent of his parents or guardians, provided he has parents or guardians entitled to his custody and control, supersedes Rev. St. § 1117, containing a similar provision as to persons under 21.</p> <p>6. Army and navy <§=19—Enlistment of minors between ages of 18 and 18 ■ not prohibited.</p> <p>National Defense Act, § 27 (Comp. St. § 1885a), repeals Act March 2, 1899, § 4 (Comp. St. § 1889), making 18 the minimum age for enlistment, and, if it does not revive Rev. St. §§ 1116, 1118 (Comp. St. §§ 1884, 1886), prescribing a minimum age limit of 16 years, leaves the common law applicable; and hence the enlistment of minors between 16 and 18 is not prohibited, but authorized with the consent of parents or guardians.</p>

At Raw. Action by Mrs. M. E. Hunt against Mary E. Pearce and another. Case removed on petition of defendant to the federal court. On motion by plaintiff to remand, and by defendants for an injunction against proceedings in state court.

<p>In Admiralty. Petition by Edgar F. Luckenbach, as managing-owner and on behalf of himself and the other owners of the barge West Point, to limit their liability, in which the Pardee & Young Company filed answer and claim. Claim allowed, and petition referred to assessor to hear evidence and report.</p>

<p>In Admiralty. Suit for collision by Theodore L. Whilden, master of the Schooner Helen Fairlamb against the United States Shipping Board Emergency Fleet Corporation, owner of the steamship Sapinero.</p>

<p>In Equity. Suit by Lenox, Incorporated, against the Jones, Mc-Duffee & Stratton Corporation. Decree for defendant.</p>

<p>At Law. Action by Dungan, Hood & Co., Incorporated, against C. F. Bally, Limited. On rule to quash writ and set aside service. Rule discharged.</p>

<p>1. Courts <§=>508(2)—Federal court cannot review action of state court in denying admission to bar.</p> <p>A federal court is without power or authority to review, re-examine, or reverse the action of the Supreme Court of a state in denying a license to practice law in the state, nor has it jurisdiction to require the state courts to grant such license.</p> <p>2. Constitutional law <§=>208 (4), 207 (2), 306—Denial of admission to bar not abridgment of “privilege or immunity.”</p> <p>While the right of an attorney to practice law is a property right of which he cannot be deprived without due process of law, refusal to grant him a license to practice -in the courts of a state is not an abridgment of any privilege or immunity, in which he is protected by the Fourteenth Amendment or article 4, § 2, of the Constitution.</p> <p>[Ed. Note.—Eor other definitions, ■ see Words and Phrases, Eirst and Second Series, Privileges and Immunities.]</p> <p>3. Attorney and client <§=»1—Statute prescribing qualification for admission to bar valid»</p> <p>A sí ate statute prescribing tbe qualifications prerequisite to the admission of any person to practice law in the courts of the state and the tribunal and procedure by which such qualifications shall be determined is within the power of the Legislature and valid.</p>

<p>1. Carriers <S=35—Misquotation of rate by agent does not affect lawful charge.</p> <p>A misstatement by an agent of a railroad company of the amount of a freight charge on an interstate shipment, and its payment by the shipper, held not to relieve him from liability for the lawful rate.</p> <p>2. Carriers <©=30—Publication not essential to lawful rate.</p> <p>A rate filed by a carrier with, and approved by, the Interstate Commerce Commission, constitutes the lawful rate, irrespective of its subsequent publication.</p> <p>3. Courts <3=34?—'Counterclaim for damage to shipment may be pleaded in action for freight in federal court.</p> <p>In an action to recover a freight charge in a federal court, defendant held entitled to assert a counterclaim for damage to the shipment, where such counterclaim is permitted, or required, by the state practice.</p>

<p>1. Admiralty <3^>12—Contract for storage of cargo not “maritime contract,’' within admiralty jurisdiction.</p> <p>A contract to furnish storage for the cargo of a vessel is not maritime, and a court of admiralty is without jurisdiction of a suit for preventing the carrying out of such contract, or for its breach.</p> <p>[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Maritime Contract.)</p> <p>2. Admiralty <3=>10—Where cause of action is separable, admiralty has jurisdiction of part which is maritime.</p> <p>A court of admiralty is without jurisdiction of a cause of action which, is maritime only in part, unless it is separable, in which case relief may be given on the part within the jurisdiction.</p>

In Admiralty. In the matter of the petition of the Central Railroad of New Jersey, owner of the lighter No. 223, for limitation of liability. On exceptions to report of special commissioner awarding damages to claimant, John Spillan, for personal injury.

In the matter of the petition of the Central Railroad Company of New Jersey, owner of the lighter No. 223, for limitation of liability. Prom an award of damages to John Spillan, claimant, petitioner appeals.

<p>Application by Jennie H. Clark for writ of habeas corpus to procure the release from custody of Lewis B. Clark, Jr.</p>

John Murray and others were indicted in the United States District Court for the Eastern District of North Carolina for conspiring to commit an offense against the government. On motion by defendants, after the order for their removal to the district in which they were indicted had been entered, to compel the clerk of the court, to file the record of the proceedings before the commissioner, so as to enable the defendants to procure a review of the order of removal.

<p>In Equity. Suit by William K. Norris and others, trustees of the McQuay Norris Manufacturing Company, against No-Leak-O Piston Ring Company.</p>

<p>Bankruptcy <§=45—Voluntary petitioners required to pay filing fee and referee’s fee.</p> <p>Where persons filing voluntary petitions in bankruptcy were able to pay their attorney, and were earning money, and by proper saving and conduct could accumulate and procure the money with which to pay the filing fee and referee’s fee, they will not be permitted to maintain the proceedings without such payment.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Suit in equity by the National Safety Gas Cock Company, Incorporated, against the Consolidated Gas Company of New York. Decree for defendant, and complainant appeals.</p>

<p>In Equity. Suit by the National Safety Gas Cock Company, Incorporated, against the Consolidated Gas Company of New York. Decree for defendant.</p>

In Admiralty. Libel by the Washington-Southern Navigation Company against the Baltimore & Philadelphia Steamboat Company, with cross-libel. On motion for an order upon libelant and cross-respondent to give security for claim of cross-libelant.

<p>1. Mortgages <@=>369(3)—Inadequate price held not to authorize setting aside trustee’s sale.</p> <p>An owner of premises subject to a trust deed, who was misled by the fraud of her agent into allowing the premises to be sold by the trustee, cannot redeem the property from a purchaser, who was ignorant of the fraud and whose conduct was in all respects equitable, on the ground o£ inadequacy of price and of her mistake, where the premises were worth $3,70(> and the sale price was $2,295.</p> <p>2. Mortgages <@=>369(2)—Equity of purchaser al naortgage sale not defeated by taking deed from fraudulent grantee.</p> <p>The fact that an innocent purchaser at a sale under a trust deed strengthened his title by taking also a deed from an alleged fraudulent grantee of the former owner gives the former owner no equitable right to redeem, where the owner expressly disclaimed any fraud on the part of me purchaser.</p>

<p>Appeal from the Supreme Court of the District of Columbia.</p> <p>Action by the District of Columbia, to the use of Frank Langellotti, and by Frank Langellotti in his own right, against Lous F. Zinkhan. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from the Supreme Court of the District of Columbia.</p> <p>Action by John P. Kern against Phillips & Sager, a corporation, for breach of contract. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from the Supreme Court of the District of Columbia.</p> <p>Suit for limited divorce by Marie E. Winston against Hollis T. Winston. From a decree dismissing the bill, complainant appeals.</p>

<p>Appeal from the Supreme Court of the District of Columbia.</p> <p>Suit by Margaret I,. Underwood against Lineas D. Underwood, for divorce a mensa et thoro. Decree for complainant, and defendant appeals.</p>

<p>1. Patents <@=>90 (5)—Actual test, and not completion of machine, constitutes reduction to practice.</p> <p>It is the actual Lest of a machine, and not the time of its completion, that is essential to establish reduction to practice.</p> <p>2. Patents <@=>90 (5)—Nunc pro time reduction to practice not recognized.</p> <p>The patent law recognizes no such thing as reduction to practice nunc pro tune.</p> <p>3. Patents <@=>90 (5)—One first conceiving, but last to reduce to practice, entitled to priority when diligent.</p> <p>One who was the first to conceive an invention, and who was diligent, was entitled to priority over another, first reducing the invention to practice.</p>

<p>1. PaiaBÍí! <S=»106(2)'—Count for vacuum pump broad emeugli to read on machina «illa flap valve.</p> <p>A count In an interference proceeding covering a vacuum primp held broad enough to read on a machine reduced to practice, chough such machine had a flap valve, instead oí the annular disk valve, called for by the other counts.</p> <p>3. S'aients (5)On© first to conceive and last to restase to practice denied ptiiA-ity. wSaen AiK«'«i®« lacking.</p> <p>One who was first to conceive an invention and last to reduce it to practice, and was lacking in diligence at the time another inventor came into the field, is not entitled to priori! y.</p> <p>3. P&tants <£r=»90(S)—On® first to conceive and first to reduce to practice entitled to priority.</p> <p>One who was 'first to conceive an invention and the first to reduce it to practica is entitled to priority.</p>

<p>1. Contracts @=>87 (1)—Bight to rescindí for fraud waived by treating contract as in force after discovery of fraud.</p> <p>One induced to enter into a contract by fraud, by continuing to treat the contract as in force after discovery of the fraud, loses the right to rescind.</p> <p>2. Banks and banking <@=>183—Recognition after knowledge of fraud waiver of right to rescind discount.</p> <p>Defendant bank discounted for a correspondent bank a note of a third person, secured by chattel mortgage indorsed by the payee bank without recourse, but personally by its president and cashier, and with a letter from the cashier authorizing defendant, on maturity of the note, to charge; the same to the hank’s account, which was credited with the amount of the discount. When the correspondent bank went into the hands <5f a receiver, before maturity of the note defendant, claiming to have discovered fraudulent representations in respect to the mortgage security, charged its account, not with the amount credited on the discount, but with the amount of the note, claiming authority under the cashier’s letter. Held, that it thereby recognized the contract of discount, and could not disaffirm it for the fraud, when sued by the receiver to recover the balance of the correspondent’s account.</p> <p>3. Banks and banking @=>134 (1) —Bank cannot apply deposit on note discounted for depositor on which latter is not liable.</p> <p>A bank held without authority to apply-a deposit in payment of a note discounted for the depositor, but which the latter had indorsed without recourse.</p> <p>4. Banks and banking <§=>134(1)—Bank cannot exercise option to charge note to depositor’s account after latter’s insolvency.</p> <p>A bank cannot exercise an option given it to charge the amount of a note discounted for a depositor to the latter’s account at maturity, where prior to such maturity the depositor has gone into the hands of a receiver and the rights of others have intervened.</p>

<p>1. Criminal law '©=’901—Demurrer to evidence is waived by introducing the evidence thereafter.</p> <p>Alleged error in the overruling of defendant’s demurrer to the evidence of the prosecution is waived by defendant thereafter introducing evidence.</p> <p>2. Criminal law @=>1169 (II)—Evidence as to defendant’s possession of other property not alleged to have been stolen held not reversible error.</p> <p>In a prosecution for possession of goods known to have been stolen, the admission of evidence that at the same time defendant had in his possession a certain quantity of silk shirting, which in two counts withdrawn from the jury it had been alleged was stolen, held not reversible error, where no evidence was admitted tending to show that the shirting had been stolen.</p> <p>3. Criminal law @=>1169(11)—Evidence of defendant’s possession of other property held harmless, under defendant’s statement and testimony.</p> <p>In a prosecution for possession of stolen shoes, the admission of evidence that, when arrested, defendant had in his possession also a quantity of silk shirting, was not prejudicial to defendant, where he admitted the possession, both in his voluntary statement to the officers and in his testimony at the trial.</p> <p>4. Witnesses ‘©=’280—Cross-examination as to whether defendant was given “third degree” held improper.</p> <p>In a prosecution for crime, where defendant’s statement to the officers was given in evidence, it was not error for the trial court to exclude cross-question whether the witness gave defendant the “third degree,” for the reason that the court did not know what was meant by the third degree, where defendant was permitted to cross-examine fully as to force and threats at the time the statement was made.</p> <p>5. Criminal law <§=’534 (2)—Evidence held to corroborate defendant’s confession he knew goods were stolen.</p> <p>In a prosecution for transporting in interstate commerce goods known to have been stolen from an interstate shipment, evidence showing that the goods were part of an interstate shipment which had been stolen, and that they were found in the possession of one to whom defendant had sold them, is sufficient to corroborate defendant’s confession.</p> <p>6. Criminal law <§==>1163(1)—Errors must be shown to be prejudicial by party complaining.</p> <p>Under Act Feb. 26, 1919, amending Judicial Code, § 269 (Comp. St. Ann. Supp. 1919, § 1246), and requiring the Court of Appeals to look to the entire record before the court, and render judgment without regard to technical errors, the former practice of holding an error reversible unless the opposite party can affirmatively demonstrate it was harmless is changed, and the burden now is on the complaining party to show from tlie record as a whole the denial of some substantial right.</p>

<p>1. Appeal and error <©=931(1), 1009(3)—Findings of fact presumptively correct, and not disturbed when based on conflicting evidence.</p> <p>Where a chancellor has made his findings of fact and decree on conflicting evidence, they will be treated as presumptively correct by an appellate court, and will not be disturbed unless an obvious error has intervened in the application of the law, or some serious mistake has been made in the consideration of the' evidence.</p> <p>2. Mines and minerals <©=84—Facts authorizing rescission of contract for purchase of mining leases.</p> <p>Evidence sustaining findings that defendants, to induce the purchase from them by complainant of .mining leases, made false representations anu concealed facts in respect to the character and value of the mines, and bribed the expert employed by complainant to examine and report on the property, and that complainant relied on such representations and reports, held sufficient to justify his rescission of the contract.</p> <p>3. Mines and minerals <3=84—-Mere suspicion of fraud does not require immediate election to rescind purchase of misting leases.</p> <p>A purchaser of mining leases, on discovery that he has been defrauded, must rescind the contract at once, or he- waives the right; but the acquiring of knowledge of facts which merely create a suspicion, and put him on inquiry, does not require an immediate election, and a delay until he can obtain substantial evidence of the fraud in the exercise of due diligence, is not a waiver.</p> <p>4. Mines and minerals <©=64—Eight to rescission of purchase of mining leases not barred by laches or estoppel.</p> <p>Complainant contracted for the purchase of mining leases, to be paid for in installments, with provision that on default in payment of any installment his rights should be forfeited, and all payments made retained, as liquidated damages. After payment of the greater part of the price, he obtained information by hearsay indicating that he had been defrauded in the purchase, but an attempt to verify such information was at the time unsuccess fui. Held, that a suit for rescission of the contract, commenced four months later, during which time he was prosecuting inquiries, was not barred by ladies, nor by estoppel, because of his payment of the installments which fell due in the meantime.</p> <p>Stone, Circuit Judge, dissenting.</p>

<p>Mortgages <@=»529(S)—Erroneous sale under decree held properly set aside.</p> <p>In a suit in a federal court for foreclosure of a mortgage on mining property, after decree, a sale was ordered without redemption, and the property was bought in by one acting in the-interests of the mortgagee for the amount of receivers’ certificates and other liens, which were prior to the mortgage. Later, in a suit in the state courts to which the mortgagee was not a party, the Supreme Court of the state held that under the state statutes the sale was subject to redemption by the owner of the mortgagor’s interest, whereupon the purchaser and the mortgagee filed petitions for relief in the federal court, which were in effect supplemented bills. Held that, in order to do equity to all parties in interest, the sale should be set aside, and all parties restored to their rights and priorities as they stood before it was made.</p>

Lynch, Judge. In the matter of the voluntary proceedings in bankruptcy against Henry J. Bloemecke. ■ A 'rule issued on bankrupt’s petition against Charles L. Applegate to show cause why he should not be enjoined from further proceedings in the state court. A judgment against the bankrupt was discharged (265 Fed. 343), and the bankrupt appeals and files petition to revise.

<p>1. Trade-marks and trade-names <®=»45—Descriptiveness immaterial, when registered under 10-year proviso.</p> <p>It is immaterial that a trade-mark registered under the 10-year proviso of the federal Trade-Mark Law (Comp. St. § 9490) may once have been descriptive or may still be to some degree.</p> <p>2. Trade-marlcs and trade-names <©==>41—When registered trade-mark and infringement used in interstate commerce, protection of federal act may be invoked.</p> <p>Where the owner of a registered trade-mark and an infringer both used their marks in interstate as well as intrastate commerce, the trade-mark owner may invoke the federal statutes, no matter how narrow the construction of the protection that they can constitutionally give. '</p> <p>3. Courts <S=>292—Common-law rights in trade-mark enforceable in federal court, when diverse citizenship and sufficient amount in controversy exists.</p> <p>Where the parties to a suit for infringement of a trade-mark and unfair competition are corporations of different states and the amount in controversy exceeds $3,000, a United States court may enforce plaintiff’s common-law rights in its trade-mark and against unfair competition*»</p> <p>4. Trade-marks and trade-names —Injunction being appropriate relief justifies suing in equity.</p> <p>In a suit for infringement of a trade-mark and unfair competition, an injunction is an appropriate part of the relief sought ,and hence the ■complaint is properly brought on the equity side of the court.</p> <p>5. Trade-marks and trade-names <S=53—Cannot be used by one manufacturing beverage similar to owner’s beverage though unpatented.</p> <p>Though any one, if he can, may manufacture a beverage similar to an unpatented beverage sold under a trade-name, and claim that it is not only as good as that sold under tlie trade-name but in fact is the same thing, he cannot, in so doing, use the trade-mark to the damage of its owner.</p> <p>8. Trade-marks and trade-names —Defendant held to have infringed plaintiff’s trade-mark and been guilty of unfair competition in sale of beverage under similar name.</p> <p>Where plaintiff’s beverage had been on sale under its trade-name, “Coca-Cola,” registered as a trade-mark, long before defendant began business, and its business had grown to great proportions, defendant, by adopting the name “Taka-Kola,” uniting the words by a hyphen and displaying them in script, as did plaintiff, and using a color scheme on the crown corks of its bottles making them indistinguishable at a distance of a few feet, was guilty of unfair competition and infringement of plaintiffs trade-mark, especially where the similarity of names had suggested to unscrupulous retailers the mixing of the two products and the sale of the mixed product as Coca-Cola.</p> <p><@s»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Youmans, Judge. Suit by the Burke Construction Company against John P. Kline and others, as the Board of Improvement oí Paving Improvement District No. 20 of the City of Texarkana, Ark. From an order denying plaintiffs application for an injunction, plaintiff appeals.

<p>Appeal from the District Court of the United States for the District of South Dakota; James D. Elliott, Judge.</p> <p>Suit by the United States, in its own behalf and as guardian of certain Indians, against G. M. Caster and another. From a decree dismissing the complaint, the United States appeals.</p>

Woodrough, Judge. Action by William Black against John Ea Porte for damages for the violation of a lease. Judgment for defendant on a verdict directed in his favor, and 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. the Hotel Woodard Company against the Ford Motor Company. Judgment for plaintiff, and defendant brings error."</p>

<p>Appeal from the District Court of the United States for the Western District of Louisiana; Rufus E. Foster, Judge.</p> <p>Suit by the United States against Thomas J. Stockley and others. Decree for complainant, and defendants appeal.</p>

<p>Appeal from the District Court of the United States for the Northern District of Texas; James C. Wilson, Judge.</p> <p>Suit in equity by Arinda Bobo and husband, against E. N. Gillespie and others. Decree for complainants, and defendant Gillespie appeals.</p>

<p>In Error to the District Court of the United States for the Southern District of Georgia.</p> <p>Action at law by Sarah Ann Hoover against Walker D. Hines, Di-</p> <p>rector General of Railroads, operating the Atlantic Coast Eine Railway. Judgment for plaintiff, and defendant brings error.</p>

<p>In Error to the District Court of the United States for the Western District of New York.</p> <p>Criminal prosecution by the United States against Douis Rosen and Jacob Rosen. Judgment of conviction, and defendants bring error.</p> <p>This cause comes here on writ of error to the United States District Court for the Western District of New York.</p> <p>The plaintiffs in error, who were defendants below, are hereinafter referred to as defendants.</p> <p>The defendants were indicted together with Eugene Hanavan, Paul Vogel, Henry Weber, and Joseph Pfeiffer and were charged with the crime of receiving property stolen from a shipment of copper, knowing that the copper had been stolen. The crime was charged to have been committed at Buffalo, in the state of New York. The property consisted of 40,000 pounds of copper ingots which constituted a part of an interstate shipment of freight from the Calumet & Hecla Smelting Company at Hubbell, in tbe state of Michigan, to the Seymour Manufacturing Company at Seymour, Conn. At the time the copper was stolen it was in the custody and possession of the Erie Railroad Company, a common carrier of freight.</p> <p>The defendants were indicted on July 29, 1919, and the trial was had at Canandaigua, N. Y., on September 15,1919. The indictment contained a single count. The two Rosens were tried alone. At the trial Yogel, who was confined in the state prison at Auburn, having been convicted of another offense of a somewhat similar character, was examined as a witness on behalf of the government, having been brought from Auburn for the purpose under a writ of habeas corpus. Weber pleaded guilty to the indictment and was also sworn as a witness for the goverhment. The two Rosens took the stand and testified on their own behalf.</p> <p>The jury returned a verdict on September 17, 1919, finding the defendants Rosen guilty as charged.</p>

<p>Appeals fi-om the District Court of the United States for the Eastern District of Louisiana; Rufus E. Foster, Judge.</p> <p>Suit by the Jahncke Navigation Company against the Alabama & New OrLeans Transportation Company, the Alabama & New Orleans Canal Company and the Bisso Towboat Company, with cross-libel by the Bisso Towboat Company. Decree for libelants and respondents and cross-libelant appeal.</p> <p>In No. 3562:</p> <p>In No. 3599:</p>

<p>In Error to the District Court of the United States for the Eastern Division of the Northern District of Ohio; John M. Killits, Judge.</p> <p>Criminal prosecution by the United States against William Ahlberg. Judgment of conviction, and defendant brings error.</p>

Tuttle, Judge. Suit in equity by Richard E Schultz, administrator of the Estate of Charles W. Schultz, deceased, and Edward A. Sweeney, against the Jackson Cushion Spring Company. Decree for defendant, and complainants appeal.

<p>1. Commerce ©=»89—Court, and not Interstate Commerce Commission, has jurisdiction of suit against railroad for breach of contract of bailment.</p> <p>A claim against a railroad company for breach of a contract of bailment is not a matter within the juris fiction of the Interstate Commerce Commission, but of the courts.</p> <p>2. Carriers ©»S4—Railroad held liable as bailee for departure from contract of hiring.</p> <p>A tank car, owned by the shipper, filled with gasoline, was delivered to a railroad company for the transportation of gasoline to a consignee under a bill of lading which entitled the owner to payment for the use of the car on a -mileage basis. The car was not delivered to the consignee, but diverted, and was not returned to the owner for three months. Held, that the railroad company was a. bailee for hire of the car, and that the contract of bailment was for its use only in accordance with the bill of lading; that its diversion was a breach of the contract, and, whether intentional or through negligence, rendered the railroad company liable for all damages sustained by the owner, including the value of its use while detained.</p>

<p>In Error to the District Court of the United States for the Southern District of Georgia; Beverly D. Evans, Judge.</p> <p>At Daw. Action by Roy R. Campbell against I. II. Eetty. Judgment for defendant, and plaintiff brings error.</p>

Proceeding by Gregory Weinstein against the Attorney General of the United States and others. From an order discharging an order to show cause (271 Fed. 5), the petitioner appeals. By affidavit and extracts from the' records of the District Court Weinstein showed that he was an alien residing in Brooklyn, and pursuant to a warrant issued by the Acting Secretary of Labor had been arrested as being found in the United States in violation of the Immigration Act of 1918 (Comp.

Habeas corpus by Alexis Georgian against Byron H. Uhl, Acting Commissioner of Immigration at the Port of New York. From an order discharging the writ, petitioner appeals. Georgian is an alien, born a Russian subject, resident in the United States since 1900, and in Minneapolis since about 1908. His occupation is that or a publisher and .bookseller.

<p>In Error to the District Court of the United States for the District of Kansas; John C. Pollock, Judge.</p> <p>Action at law by the City of Pittsburg, Kan., against the Williams Construction Company and the 'Chicago Bonding & Insurance Company. Judgment for plaintiff, and defendant Bonding Company brings error.</p>

<p>In Error to the District Court of the United States for the Eastern District of Missouri.</p> <p>Action by Charles Stoffregen against George H. Moore, as Collector of Internal Revenue: Judgment for. defendant (264 Fed. 232), and plaintiff brings error.</p>

Suit in admiralty by George Flint and others, doing business as Flint, Goering & Co., Limited, against the steamship Bjomefjord. Decree for respondent, and libelants appeal.

<p>In Error to the District Court of the United States for the Northern Division of the Western District of Washington; EdwardE. Cushman, Judge.</p> <p>James A. Russell was convicted of falsely assuming and pretending to be a United States officer, and he brings error.</p>

<p>1. Criminal law 'S^SOl—Acquit tal of offense against state does not bar prosecution by federal government.</p> <p>An acquittal of defendant in the state court on the charge of transporting intoxicating liquor into a county, to bo lcopt stored and sold to other persons therein, is not a bar to his trial and conviction in the federal court for transporting the same liquor in interstate commerce, since the two offenses were different and committed against different sovereignties.</p> <p>2. Criminal law <§=^382—Acquittal in state court not competent evidence for defendant in federal prosecution.</p> <p>In a prosecution in the United States court for unlawfully transporting intoxicating liquor in interstate commerce, a judgment of the state court, acquitting defendant of transporting the liquor into a county to be illegally kept, stored, or sold, which was rendered upon a general verdict without any special finding of facts, is not admissible as evidence of defendant’s innocence, since defendant could have been innocent of the offense against the state law, and yet have been guilty of the offense against the federal statute.</p>

<p>Bankruptcy <3=>1()6(4)—Alleged preference not recoverable, where defendant had no reasonable cause to believe preference would fee effected.</p> <p>A trustee in bankruptcy cannot recover an alleged preferential payment under Bankruptcy Act, § 60b, as amended (Comp. St. § 9614), where there, is no sufficient evidence that defendant had reasonable cause to believe that the enforcement of the payment would effect a preference.</p>

In Admiralty. Libel by Frank B. Hall & Co., Incorporated, against the dredge Boston for advances for insurance. On exceptions by interveners to the amended libel.

In Equity. Separate bills by James Heddon’s Sons and another. against Joseph K. Rush and another, to secure a decree that complainants were entitled to a design patent, and by Joseph K. Rush against Albert K. Paltz, doing business under the firm name of the W. A. Able Company, for the infringement of a patent. The first suit above entitled, No. 254, is brought by the complainants under seotion 4915 of the Revised Statutes (Comp.

<p>Suit by Frank N. Snell and another against the Frank Snell Sawmill Company and another. On interventions by solicitors for an allowance of fees. Allowance to complainants’ solicitors denied, and allowance to defendants’ solicitors granted.</p>

<p>At Law. Action by the Walsh Construction Company against the City of Cleveland, in which the defendant City had the National Surety made a defendant. On exceptions to the master’s report.</p>

Action by George P. Benedict, as sole surviving trustee of the trusts created by the last will and testament of William C. Bangley, deceased, against the Binited States of America and the City of New York, to recover compensation for lands requisitioned by the Binited States for storehouses of military supplies. On motion by plaintiff to strike ■out the defen'se that the District Court was without jurisdiction to-entertain the action.

<p>L Constitutional law <§=275 (1)—Health <§=21—System of grading barbers held contrary to duo process.</p> <p>The system of grading adopted by tlie Washington Board of Barber Examiners, under Laws Wash. 1901, p. 349, valid under the police power only as a measure for the health and safety of the public, under which system a very large percentage of the credits were given for matters which did not affect the health or safety of the people, but were merely matters of skill, is so arbitrary and capricious as to justify the presumption that it was intended thereby to leave it within the power of the board to refuse arbitrarily a license, which amounts to deprivation of liberty without due process of law, and violates Const. Amend. 14.</p> <p>On Rehearing and Reargument.</p> <p>2. Constitutional law <§=81—Health <§=21—Barbering can be regulated only to protect health and safety.</p> <p>In so far as the practice of barbering is concerned, the public welfare and comfort—outside of what is included in its health and safety—are so insignificant as not to lend color to any right of regulation claimed under Uie police power of the state.</p> <p>3. Health <§=21—System of grading barbers held not to effectuate purpose to protect health and safely.</p> <p>The system of grading applicants for barbers’ licenses adopted by the Washington Board of Barber Examiners, under which the great preponderance was given to matters of mere mechanical skill, so that an applicant who displayed no knowledge essential to the protection of the health and safety of the public might be licensed if he displayed sufficient skill, while full knowledge would be insufficient to obtain a license if the applicant were not skilled, has no substantial relation to the public health, and therefore cannot be sustained under the police power.</p>

<p>At Law. Action by Arthur S. Plews against Albert C. Burrage and others. On demurrer to the replication.</p>

<p>1. Receivers <§=31—Friendly proceedings held net collusive or fraudulent.</p> <p>Where the creditor asking- for the appointment of a receiver had a valid debt, though it was not yet due nor reduced to judgment, and it appeared that the proceedings were suggested by the president of the defendant railway company, and that the defendant admitted the allegations in the bill and joined in the prayer for relief, the friendly nature of the proceedings does not render it collusive or fraudulent, especially when there is no one seeking a revocation of the receivership, and the parties objecting to the court’s orders to the receiver would probably have no standing to seek revocation.</p> <p>2. Kailroaas <§=267—Cannot be compelled to operate at loss.</p> <p>Since railroad property, though devoted to public use, cannot bo taken without due process of law, nor without compensation, so that the railroad cannot he compelled to operate at a continuous loss, or even without a reasonable return on the investment, a court appointing a receiver for the railroad for the primary object of preserving the property until the rights of all concerned in it can be ascertained and effectuated, cannot require the railroad to bo operated at a continuous loss.</p> <p>3. Railroads <§=207—Receiver should not operate, when consuming the corpus.</p> <p>When it appears that the operation of a railway by a receiver under-existing conditions is consuming the corpus of the property, and there is no prospect'of an early change for the better, it is the duty of the court to change the conditions by reducing operating expenses, since it cannot raise rates nor compel patronage, or, as a last resort, to cease operations.</p> <p>4. Receivers @=99—Not bound by executory contracts until accepted.</p> <p>While a receiver takes the property subject to all existing liens on it, he is not bound by the executory contracts of the owner, but may, under the authority of the court, adopt them, if it appears to the benefit of his trust, or decline to adopt them and leave the original contracting parties to their legal remedies.</p> <p>5. Receivers @=>99— Continuing performance of contract for reasonable time</p> <p>not an adoption,</p> <p>A receiver has a reasonable time after his appointment within which to elect whether to adopt executory contracts, and the mere continuance of the execution of a contract pending election within such time is not an adoption of it.</p> <p>6. Receivers @=99—Held not bound by corporation’s contracts with employees.</p> <p>A contract with railway employees stands on the same footing as other contracts in receivership proceedings, and where the order authorizing the receiver to operate the railway expressly provided that no contracts of the company were to be considered adopted by him without authority from the court, and within three days of his appointment the receiver applied to the court for an order reducing the wages of the employees, there can be no contention that he had adopted the existing wage contracts of the railway.</p> <p>7. Receivers @=>113—Administrative order may be granted, with leave to</p> <p>apply for subsequent hearing.</p> <p>In receivership proceedings, an administrative order, which affects numerous persons not parties to the cause, may properly be granted on the receiver’s application, with leave to parties affected thereby to bring on a hearing thereafter, since such order is the most practical way of getting the hearing, and adjudicates nothing, but merely permits the receiver to act thereon at his own risk of the result of the subsequent hearing.</p> <p>8. Receivers @=>96—Labor Board lias jurisdiction over wages of receiver’s</p> <p>employees; “carrier.”</p> <p>Though the Transportation Act, in the portion establishing the Labor Board, does not expressly mention receivers, its definition of carriers dealt with as including any carrier by railroad subject to the Interstate Commerce Act, with certain exceptions, is sufficiently broad to cover a receiver operating an interstate railroad.</p> <p>[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Carrier.]</p> <p>9. Receivers @=>96—Court has jurisdiction to determine whether receiver</p> <p>can pay current wages.</p> <p>Where there is no dispute as to the reasonableness of the existing wage scale of railway employees, but the receiver claimed the operating revenues were insufficient to pay such scale, the question of whether the wages should continue to be paid or not was one for the final determination of the court appointing a receiver, as was also the question whether the wages fixed by the Labor Board deprived the railway of its property without compensation, so that the court can determine those questions on an application by the receiver for a reduction of wages, even though the Labor Board might also have jurisdiction to determine them subject to review by the courts.</p> <p>19. Receivers @=>96—Newlands Act, delaying wage reduction, applies to railroad receivers.</p> <p>Under Newlands Act, § 1 (Comp. St. § 8666), defining carriers and employees affected thereby, and section 9 (section 8674), providing that, whenever receivers are in control of the business of employers covered by the act, the employees of such employers had a right to be heard before wages were reduced, after at least 20 days’ notice of the proposed hearing, clearly includes all persons operating railroad trains at the time the receiver takes possession, so that the reduction of the wages of such persons under the act can only be made after 20 days’ notice.</p> <p>11. Receivers ©=>96—First order fixing wages is subject to Newlands Act.</p> <p>Since tbe receiver ordinarily continues the business of a railroad without interruption, and tentatively, at least, continues the employees of the owner as his employees, the contention that the first order of the receiver establishing wages of employees was not within the intent of Congress in adopting Newlands Act, § 9 (Comp. St. § 8674), forbidding reduction of wages without 20 days’ notice, cannot be sustained.</p> <p>12. Receivers ©=>96—Newlands Act, requiring hearing before wage reduction, is valid regulation.</p> <p>The provision of Newlands Act, § 9 (Comp. St. § 8674), requiring a hearing after 20 days’ notice before the reduction of wages by a railway receiver appointed by the federal courts, is justified as a statute of procedure in federal courts, under the implied power of Congress to regulate the exercise of the jurisdiction of the courts which it is authorized by the Constitution to establish.</p> <p>13. Commerce ©=>58—Statute temporarily fixing wages, to avoid strike is valid regulation.</p> <p>A law fixing the wages of certain classes of railway employees temporarily pending a hearing, for the purpose of avoiding a strike, is a valid regulation of commerce.</p> <p>14. Constitutional law ©=>89(1)—Receivers have no guaranteed liberty of contract.</p> <p>A receiver, as such, has no general liberty of contract, so that a statute prohibiting him from reducing wages of bis employees pending a hearing is not objectionable, as violating his liberty of contract, even if it were construed to prevent him from discharging employees to hire others at lower wages.</p> <p>15. Receivers ©=>96—Can make wage reductions by contract without prior hearings.</p> <p>The reduction of wages by a railway receiver appointed by the federal court, forbidden by Newlands Act, § 9 (Comp. St. § 8674), without a hearing after 20 days’ notice, is a reduction not consented to, since only such reductions provoke strikes, which it was the object of the act to prevent, and therefore that statute deos not prevent the receiver from making contracts with the existing employees or with new employees for employment at reduced wages.</p> <p>16. Constitutional law ©=>298(2)—Eminent domain ©=>2(8)—Suit requiring maintenance of existing wages for 20 days not a deprivation of property without just compensation or due process of law.</p> <p>Newlands Act, § 9 (Comp. St. § 8674), forbidding wage reductions by federal receivers of interstate railways until after a hearing on 20 days’ notice, is not unconstitutional, as taking property without due process of law or without just compensation, since it merely requires maintenance for a brief period, of the wage scale consented to by the owner of the property and if such maintenance is impossible the operation can be stopped.</p> <p>17. Receivers ©=>96—Only employees actually operating trains are within Newlands Act.</p> <p>Under Newlands Act, § 9 (Comp. St. § 8674), requiring a hearing on 20 days’ notice before reduction of wages of employees of a receiver of a railway appointed by a federal court, and section 1 (section 8666), defining employees affected by the act as persons actually engaged in train operation or train service, train operatives and train service men include only engineers, firemen, conductors, switchmen, train hands, and porters, and these alone are covered by the act, though telegraphers, station agents, clerks, and track and shop men are necessary to the continued operation of trains.</p> <p>18. Receivers <©^>114—Employees held entitled to attack court order reducing wages.</p> <p>Employees of a railway when a receiver took it, who continued in such employment under protest after the receiver reduced the wages under an order of court invalid under Newlands Act, § 9 (Oomp. St. § 8674), because not rendered after a hearing of which 20 days’ notice had been given, were entitled to claim the compensation 'previously paid them for the time they so served under protest, and therefore have a standing in court to attack the validity of the order reducing the wages, though thereafter they terminated their employment by striking.</p>

In Equity. Suit by the Birmingham Trust & Savings Company against the Atlanta, Birmingham & Atlantic Railway Company, in which a receiver was appointed for the defendant company. Hearing upon the question of wages and salaries to be paid by the receiver to the employees, at which N. H. Evans and others, for themselves and as representatives of certain labor unions, moved for a declaration of the status of striking employees at the hearing.

<p>Three separate suits by the United States against the Board of Commissioners of McIntosh County, against W. W. Stuckey, Treasurer of Tulsa County, and against J. P. Ranson, Treasurer of McIntosh County.</p>

<p>1. Public lands <2=^106 (1)—Department's finding description was sufficiently certain not disturbed.</p> <p>Within reasonable limits, it is a question of fact whether the description of lands in a railroad company’s selection list in terms of future .survey designated the lands with reasonable degree of certainty, and the finding on such issue by the Land Department within such limits will not be disturbed by the courts.</p> <p>2. Time <S^>8—Publication of notice of state’s application for survey of public lands held for 30 days.</p> <p>Where the state’s application for a survey of public lands under Act Aug. 18, 1894, was received by the Commissioner of the General Land Office on July 15th, before which it did not become effective for any purpose, a . publication of the notice of such application in six weekly issues of a local paper, the first being on July 10th, and the last on August 14th was sufficient compliance with the requirement of publication for 30 days, since, assuming that the first effective publication is that of July 17th, the publication was made in every issue of the paper published during the 30-day period following the filing of the application.</p> <p>3. Public lands <f^23—Commissioner can reject state’s application for survey of excessive tract.</p> <p>Under Act Aug. 18, 1894, authorizing application by the state for a survey of townships from which to make a selection of lands, the area to be surveyed must bear some reasonable rel'ation to the area the state has the right to select, and where the application was for the survey of a vast area of land, of which the state had the right to select only a small portion, the Commissioner of the General Land Office had jurisdiction to refuse the application.</p> <p>4. Public lands <®^81(3)—Survey application does not withdraw land before acceptance or recognition by department.</p> <p>The rule that an invalid application for valid entry of public land segregates such land requires that such application must in some way be accepted or recognized by the Land Department, even though erroneously, so that an application of the state for the survey of lands did not segregate such lands, preventing selection thereof by a railway company, where at the very outset the Commissioner of the General Land Office rejected the application.</p> <p>5. Public lands @^81 (3)—State’s application for survey does not prevent entry by another subject to state’s preference right.</p> <p>An application by the state for a survey under Act Aug. 18, 1894, does not give the state a claim or right to any portion of the land, though the act does use the terms “reserved” and “withdrawn,” but merely gives the state a preference right to select lands therefrom at its option, and in the meantime such lands can be entered by the filing of other applications, subject to such preference right.</p> <p>6. Public lands ®=»81(3)—Railroad can select subject to state’s preference right.</p> <p>The provision of Act March 2, 1899 (Comp. St. §§ 6223-5226), authorizing a railroad company to select in lieu of relinquished lands an equal quantity of nonmineral public lands not reserved, and to which no adverse right or-claim has attached or been initiated, does not deprive the railroad of the right to apply thereunder for lands included in an application by the state for a survey subject to the preference right of the state.</p>

<p>In Admiralty. Suit for collision by the Frugart Aktieselkabet, owner of the Norwegian steamship Sosua, against the steam tug Hainesport.</p>

<p>1. Insurance @=125 (2)—Governed by law of state where delivered.</p> <p>A life insurance policy, delivered in the state where insured resided, became a contract of that state, governed by its laws.</p> <p>2. Insurance @=^357(2)—Amount of loan deducted before extended term insurance was computed.</p> <p>A life insurance policy, governed by the laws of New York, which provided that the part of the annual premium remaining unpaid at the maturity of the contract and any other indebtedness to the company should be deducted from the amount payable by the company, and also provided for extended term insurance in case of nonpayment of the premium, which would be reduced by any indebtedness placed on the policy, permits the company, under the laws of that state, to deduct the amount of a policy loan before computing the term of extended insurance.</p> <p>3. Insurance @=»146(1)—Construction of ambiguous provision adopted by parties will be followed.</p> <p>Where a life insurance policy was ambiguous as to whether the amount of a policy loan should be deducted before the paid-up premium was computed, the construction placed on the contract by the parties when the loan was made, by providing for such reduction in accordance with the rule of the company, will be accepted by the courts.</p>

<p>In the matter of the petition of Christian Trachsel for naturalization.</p>

<p>1. Maritime liens '§=»28—Claimant must exercise diligence to ascertain authority to bind vessel.</p> <p>A claimant, who furnishes supplies for repairs to a vessel, must exercise diligence to ascertain whether the person who ordered the supplies had authority to bind the vessel.</p> <p>2. Maritime liens <§^65—Evidence held not to show diligence which would have disclosed charterer’s lack of authority.</p> <p>On libel to enforce a maritime lien for a boom furnished to a hoisting barge, evidence that libelant knew before he furnished the boom that the one who ordered it was not the owner of the barge held to show that libelant did not exercise due diligence in ascertaining the authority to charge the vessel with liability for the boom, which was in fact ordered by a charterer of the barge to comply with the charter requirement that the barge be returned in the same condition as when it was chartered.</p>

<p>At Law. Action by the Wenatchee Produce Company against the Great Northern Railway Company. On demurrer to complaint.</p>

At Law. Action by the Saranac Land & Timber Company against James A. Roberts, as Comptroller of the State of New York. On motion by defendant to vacate an order granting a new trial.

<p>In Bankruptcy. In the matter of the Associated Oil Company, Incorporated, bankrupt. On petition of Alvin M. Fromherz, state receiver, to vacate adjudication.</p>

<p>Criminal prosecution by the United States against the People’s Fuel & Feed On demurrer to indictment.</p> <p>Writ of error dismissed. 254 U. S.--, 41 Sup. Ct. 448, 65 L. Ed.-.</p>

<p>Railroads New, vol. 6A Key-No. Series—Federal agent may sue on claim accruing to government during control.</p> <p>Under Federal Control Act March 21, 1918, §§ 1, 8, 12 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ 3115%a, 3115%h, 3115% t), and Transportation Act 1920, §§ 202, 206, 211, the new Director General, appointed pursuant to section 211 of the Transportation Act, is the proper party plaintiff in an action to recover a claim accruing to the United States or to the Director General during the period of federal control.</p>

At Law. Action by Asie E. Standley against the United States Railroad Administration, Walker D. Hines, Director General of Railroads, and the Pennsylvania Railroad Company. On plaintiff’s demurrer to a defense in the answer. Sustained, and sustained as to the petition, so far as it makes the Director General a defendant.

<p>Criminal prosecution by the United States against Herbert Hallo-well. On demurrer to indictment.</p> <p>Authorities cited by plaintiff: Armour Packing Co. v. U. S., 209 U. S. 84, 28 Sup. Ct. 428, 52 L. Ed. 681; Paraiso v. U. S., 207 U. S. 368, 28 Sup. Ct. 127, 52 L. Ed. 249; Redbetter v. U. S., 170 U. S. 606, 18 Sup. Ct. 774, 42 L. Ed. 1162; Clement v. U. S., 149 Fed. 305, 79 C. C. A. 243; U. S. v. Swift (D. C.) 188 Fed. 99; Brown v. U. S., 143 Fed. 60, 74 C. C. A. 214; U. S. v. McEwan (C. C.) 44 Fed. 594.</p> <p>Authorities cited by defendant: U. S. v. Baird (D. C.) 48 Fed. 554; U. S. v. Pitotto (D. C.) 267 Fed. 603; U. S. v. Fears, Fed. Cas. No. 15,080.</p>

<p>Appeal from the Supreme Court of the District of Columbia.</p> <p>Condemnation proceeding by Louis Brownlow and others, Acting Commissioners of the District of Columbia, in which W. Walton Edwards filed a motion to quash the verdict. From a judgment confirming the verdict, Edwards appeals.</p>

<p>Patents <§=91 (4) —Evidence held to show that exhibit which embodied invention was made before date allowed to adverse party.</p> <p>In Interference proceedings, evidence held, to show that an exhibit produced by appellant, which embodied the invention and constituted a full reduction to practice of the device in issue, had been constructed by appellant before the earliest date allowed to the party to whom the Commissioner awarded priority.</p>

Killits, Judge. Libel in admiralty by the Providence-Washington Insurance Company against the steamer Viking, her engines, boilers, etc., and the Petrol Traffic Company. From a decree for libelant, defendants appeal.

Woodrough, Judge. Action by the United States National Bank of Portland, Or., a corporation, against the Scandinavian-American Bank of Fargo, N. D. Judgment for plaintiff, and defendant brings error.

<p>In Error to the District Court oí the United States for the District of New Jersey; John Rellstab, Judge.</p> <p>Action at law by Uouis Kemeny against the Victor Talking Machine Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Sales «§=>89—Extension after expiration of time for delivery not without consideration.</p> <p>A contract for sale of grain to be delivered during a stated month, which provided: “If this contract, or any part of it, expires without being filled, take up disposition of balance with buyer by wire, phone, or letter. Buyer reserves right to accept or reject cars shipped after contract expires”—< gave the buyer the right at his election to waive a breach by failure to deliver within the month, and an agreement made after expiration of the month extended the time for deliveries held not without consideration.</p> <p>2. Sales <§=>182(1)—Whether buyer first breached contract held for jury.</p> <p>Where, in an action by the purchaser for breach of a contract for the sale and delivery of grain, defendant pleaded as an excuse for failure to deliver or tender delivery that plaintiff had repudiated the contract, such defense raised an issue of fact for the jury.</p> <p>3. Appeal'and error <§=>1066—Trial <§=>253 (6)—Instruction as to weight of evidence erroneous and prejudicial, as ignoring other evidence.</p> <p>An additional instruction, given to a jury which was in disagreement, stating that there were two disinterested witnesses whose testimony tended to support the contention of defendant, and that if the jury believed them they would be warranted in finding the weight of evidence to be in favor of defendant, which was immediately followed by a verdict for defendant, held erroneous and prejudicial, as in effect requiring tne jury to ignore all other evidence on the issue.</p>

<p>1, Injunction «=>60—Granted to enforce negative covenant in contract for personal services.</p> <p>While a court of equity will not decree specific performance of a contract for personal services, it has power to enforce by injunction a negative covenant in the contract that the services contracted for shall not be rendf iod to another during the contract term, and will do so where the Services are unique and extraordinary and cannot be purchased from others, and damages for breach of the contract cannot, therefore, be measured with certainty.</p> <p>2. Contracts €=23(1)—Operation of “option” contract stated.</p> <p>An “option,” when based on a sufficient consideration, is a contract by which one party binds himself to sell property or perform services, ana leaves it discretionary with the other to take the property or accept the services on the terms specified, and in such a contract there are two elements : First, the offer to sell or to render the services, which does not become a contract until accepted; and, second, the completed contract to continue the offer, or leave it open for the time named.</p> <p>[Ed. Note.—Eor other definitions, see Words and Phrases, First and Second Series, Option.]</p> <p>3. Contracts @=22(1)—Generally mailing letter effective exercise of option.</p> <p>If an option contract either expressly or impliedly authorizes acceptance of the offer by letter, the due mailing of such a letter is an effective exercise of the option, whether it is received or not.</p> <p>4. Contracts @=22(1)—Mailing letter held effective exercise of option.</p> <p>Where a contract was made by letter, and gave one party an option- to renew it by notice, either written or oral, the mailing of a letter, duly stamped and addressed; containing such notice, held an effective exercise of the option.</p> <p>5. Contracts @=22(1)—Notice of exercise of option held sufficient.</p> <p>Where notice of the exercise of an option to renew a contract for a further term expressly stated that it was given “in accordance with the • terms of” the contract, such terms are controlling, and the notice is to be ■construed according to the intention of the contract, and is not ineffective because it stated incorrectly the date of expiration of the contract.</p> <p>6. Sunday @=17—Contracts for services on Sunday not invalid at common law.</p> <p>A contract for rendition of services in theatrical performances held noc void because it provided that such services should be rendered on Sundays, when required “in states where Sunday performances are expressly permitted by law”; such performances not being unlawful, in the absence of prohibitory statutes.</p> <p>7. Sunday @=17—Contract not construed to require unlawful services.</p> <p>A contract to perform in theatrical entertainments for 20 weeks held not one to perform on Sundays where such performances were prohibited by statute.</p>

Pollock, Judge. Suit in equity by the United States against Shloen Layzor Evel Yokovich Klub,ok, alias Sail Glubok. On appeal by complainant from modification of decree on motion of Nat A. Goldstein and William Sacks. On January 2, 1914, the United States of America filed its hill in equity in the District Court of the United States within and for the Eastern Division of the Eastern Judicial District of Missouri, under section 15 of the act of Congress of June 29, 1906 (Comp.

Action by John Ewen against the American Fidelity Company. Judgment for defendant, and plaintiff brings error. This cause comes here on writ of error to the United States District Court for the Southern District of New York. On May 11, 1915, a summons was issued in an action brought in the New York Supreme Court, Kings County, wherein David Clinton Mackey was plaintiff and the Illinois Surety Company was defendant.

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Suit for infringement of patent by the American Laundry Machinery Company against the United States Hoffman Company. Decree for defendant, and plaintiff appeals.</p>

Foster, Judge. Action by the Seaboard Air Line Railway Company against the New Orleans Export Company to recover storage charges. Judgment for defendant on a directed verdict, and plaintiff brings error.

<p>I. Mines and minerals <®=55 (5)—Reservation of “minerals” held1 to include natural gas.</p> <p>Under the settled law of West Virginia that the word “mineral” is not capable of a definition of universal application, but is susceptible of limitation according to the intention of the parties using it to be ascertained from the language of the deed, the relative position of the parties, and the nature of the transaction, where a controversy over the title to land was settled by a conveyance of the land by one party to the other, who was in occupancy oí the surface, with a reservation oí “all the minerals, mineral substances, and oils of every sort and description,” with the right to mine, bore wells, and use so much of the surface as required in operating 'mines or wells, the reservation held to include natural gas.</p> <p>[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, liineral.]</p> <p>2. Bvidenss l (.“) —Ilxr.¡:;¡;ie¡; oí extrinsic evidence to affect ccnsfa-action of reservation in deed held mot emir.</p> <p>On an issue as to whether a reservation of “minerals” in a deed included natural gas, the exclusion of evidence to show that at the time natural gas had not been commercially produced in the vicinity held not error.</p> <p>3. Taxation —Tax deed held not to convey title to minoráis.</p> <p>tirador Code W. Va. 1013. e. 21), § 39 (see. 923), providing that, when one person is the owner of the surface and another of the minerals under it, the assessor shall list the interests separately and assess each to its owner, a tax deed, based on taxes assessed to the owner of the surface, who was not the owner of the minerals, held not to convey title to the mineral rights.</p> <p>4. Evidence >§£=>230(3)—Declara,lion of grantor after conveyance not admissible against grantee.</p> <p>A statement of a grantor in disparagement of his title, made after his conveyance, is not admissible against his grantee.</p>

<p>1. Pleading <&=»236(4)—Allowam®» of amenstatsnii at cíese at trial within discretion of the court.</p> <p>Allowing amendment of a declaration after close of the evidence, on the ground that it more clearly defined the issues tried, held within the discretion of the court.</p> <p>2. Frauds, statute cf <3=>33(2)—Promise fey wife to performs. centrad, ©f husfeasMi m ««Kdition that pmitlBee would not sue Mm, held am original promises not within statute.</p> <p>A promise by a wife to perform a contract of her husband in case she outlived him, on condition that the promisee would not bring an action against the husband held an original and not a collateral promise, and not within the statute.</p> <p>3. Frauds, statute of <s»158(4)—ifóracftBg of sufficient erasMeratioi® tvs wife’s promise to preform her imsbsn^s contract wacrantoti.</p> <p>A jury held warranted in finding that a promise by a wife to perform a contract of her husband, who was then over 80 years old, on condition that the promisee would not bring suit against him during his life, which action might endanger liis life, was made to subserve the wife’s own pecuniary interest and based on sufficient consideration.</p>

<p>In Error to the District Court of the United States for the Western District of North Carolina, at Asheville; Edwin Y. Webb, Judge.</p> <p>Action at law by C. W. Savage and W. A. Savage, partners as Savage Bros., against the Lilly Lumber Company. Judgment for plaintiffs, and defendant brings error.</p>

<p>1. Eminent domain <§=>862(1)'—In salt for condemnation of canal, evisfcnc® of soot of reproduction admissible.</p> <p>Tu a suit by the United States for condemnation of a canal, evidence of the value of the land included on the right of way at the time of commencement of the suit, assuming that the canal had not been built, held admissible as bearing on the cost of reproduction.</p> <p>2. Eminent domain <§=>202(1)—Evidence as to earning1 capacity of canal mt competent.</p> <p>In a suit for condemnation of a canal, evidence of a proposed contract with a steamship company respecting tolls, as bearing on the potential value of the property, held not competent, where the contract was not executed.</p> <p>2. Evidence <§=>486—Future earnings of canal not proper subject of ©pinion evidence.</p> <p>In a suit by the United States for condemnation of a canal used for interstate traffic, the probable future towage of the canal and the additional revenue to be derived, in view of such increased tonnage, helé not a proper subject of opinion evidence.</p> <p>4. Eminent domain <@=202(1)—Evidence of cost of reproduction under abnormal conditions not admissible.</p> <p>In a suit by the United States for condemnation of a canal, evidence of the cost of reproduction at the time of commencement of the suit, when, owing to war conditions, such cost was abnormally increased, helé not admissible as an element of value to be considered, unless reproduction at such enhanced cost would be a reasonable commercial investment, a fact to be either determined by the court as a preliminary or submitted to and found by the jury.</p> <p>5. Eminent domain <@=134—Peculiar value of property to party asking condemnation not element of market value.</p> <p>In ascertaining the market value of property taken in a condemnation proceeding, the utility or availability of the property for the special purpose of the taker cannot be shown, if the taker is the only party who can use it for that purpose.</p> <p>6. Eminent domain <@=^282(5)—Error in admission of evidence not cured by instruction.</p> <p>In a suit by the United States for condemnation of a canal, the admission, on the issue as to the value of the property, of the testimony of high officers of the army and navy that the property was of great value, and even necessary for military and naval purposes and for national defense, helé error, and where the testimony was not withdrawn, and such facts were argued at length to the jury as enhancing the value of the property, the error helé not cured by a brief instruction that its peculiar value to <ae government for such purposes should not be considered.</p> <p>. 7. Eminent domain <@=128 (1)—Elements entering into valuation of public utility; “going value.”</p> <p>In ascertaining the fair value of a public utility in a proceeding for its condemnation, apart from its franchise, consideration is to be given to the value of its physical property, including preliminary and overhead costs necessary to prepare the plant for service, and also to the sums actually and fairly expended in creating the business and revenue of the enterprise, or what is generally known as the “going value” of the concern, provided the business has been profitable or there is a reasonable probability of its becoming so.</p> <p>[Ed. Note.—Eor other definitions, see Words and Phrases, Eirst and Second Series, Going Value.]</p> <p>8. Eminent domain <@=202 (1)—Elements entering into valuation of property.</p> <p>In ascertaining the value of a canal in a proceeding for its condemnation, evidence of the amount of stock and bonds of the canal company paid for rights, franchises, and services, largely by the construction company, to which they were issued under its contract, and including a payment made for organizing a syndicate for floating the bonds, helé improperly received, especially where, there was no evidence of the actual market value of the stock and bonds so used, or to show what items of the total expenditure were proper items of construction costs.</p> <p>9. Eminent domain <@=241—Suit for condemnation of Cape Cod Canal; form</p> <p>of judgment.</p> <p>In a suit by the United States for condemnation of the Cape Cod Canal under Act Aug. 8, 1917, the court helé, under the pleadings and verdict, without authority to enter any judgment, except the conditional judgment provided for by the statute.</p>

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>Action at law by the Allied Machinery Company of America against the Eehigh Valley Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>Action at law by John Lysaght, Limited, against the Lehigh Valley Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Criminal law '©=>307—Possession of narcotics may be made prima facie evidence of crime.</p> <p>Though the mere possession of narcotic drugs cannot of itself be made a crime, it may be made prima facie evidence of some other offense, as it was by Harrison Narcotic Act, § 1, as amended by Revenue Act 1918, § 1006 (Comp. St. Ann. Supp. 1919, § 6287g).</p> <p>2. Poisons <^9—Allegation in indictment that defendant sold and distributed narcotics implies he was within class required to register.</p> <p>A11 allegation in the indictment that defendant sold, dispensed, and distributed narcotics implies that he was within the class required to register by Harrison Narcotic Act, § 1, as amended by Revenue Act 1918, § 1006 (Comp. St. Ann. Supp. 1919, § 6287g_), and, with proof that narcotics were found in his possession, is sufficient allegation and proof that he was required to register to place on him a burden of showing that he was not in the class required to register and that his possession was not unlawful.-</p> <p>3. Poisons @=^9—Instruction- that finding narcotics in defendant’s room was</p> <p>prima facie evidence held not error.</p> <p>In a prosecution for violating Harrison Narcotic Act, § 1, as amended by Revenue Act 1918, § 1006 (Comp. St. Ann. Supp. 1919, § 6287g), where it was undisputed that narcotics were found in defendant’s room, but he denied any knowledge of them, and offered evidence that others had access to his room, a charge that if the narcotics -were found in defendant’s possession—that is, in the room occupied by him—such possession was prima facie evidence of purchase and sale by him, was not erroneous, as declaring the finding of the narcotics in the room established his possession, where immediately after that paragraph the court directly charged that, in determining whether the narcotics were found in defendant’s possession, the jury should consider all the circumstances in the case, including the fact, if so found, that other persons had access to the room.</p> <p>Webb, District Judge, dissenting.</p>

<p>In Error to the District Court of the United States for the Eastern District of Virginia, at Richmond; Edmund Waddill, Jr., Judge.</p> <p>Frank Senick was convicted of violating Harrison Narcotic Act, § 1, as amended by Revenue Act 1918, § 1006 (Comp. St. Ann. Supp. 1919, § 6287g), and he brings error.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Arkansas; Jacob Trieber, Judge.</p> <p>Suit in equity by the Walter A. Zelnicker Supply Company against the Dermott Land & Lumber Company. Decree for complainant, and defendant appeals.</p>

<p>1. Bankruptcy @=>264—Court has discretion to refuse to conten sale for less than three-fourths of the appraised value.</p> <p>Under Bankruptcy Act, § 70b (Comp. St. § 9054), requiring property of the banknipt to be sold subject to the approval of the court when practicable, and not sold otherwise than subject to such approval for less than 75 per cent, of its appraised value, the court bad discretion to refuse to confirm a sale on the property at public auction, where the best bid was only 41 % per cent, of the appraised value.</p> <p>2. Bankruptcy <^>264—Discretion held to have been wisely exercised in refusing to confirm sale.</p> <p>The action of the District Court in exercising its discretion to refuse to confirm a sale of property for 41% per cent, of the appraised value, when a subsequent offer for 50 per cent, of such value had been received, will not be disturbed on petition to review.</p> <p>3. Bankruptcy ’@=’264—Highest bidder at sale only makes offer subject to confirmation.</p> <p>The highest bidder at an auction sale of the property of a bankrupt, whose bid was only 41% per cent, of the appraised value of the property, did not thereby buy the land, but only offered to buy it, and his offer was unaccepted until it should be confirmed by the court, so that he cannot complain of the court’s refusal to confirm the sale to him.</p>

Thomas, Judge. Action by the United States against the International Silver Company to collect a penalty for violation of the Immigration Act. Judgment for defendant, on sustaining demurrer to the complaint (255 Fed. 694), and the United States brings error.

<p>1. Appeal and error <§=>237(6)—Sufficiency of evidence not reviewable, where not raised in trial court by motion.</p> <p>Where an action at law is tried to the court by stipulation, the question whether the evidence is sufficient to sustain a general finding by the court is reviewable in the appellate court only when it was raised in the trial court by motion to find the facts or to declare the law.</p> <p>2. Interpleader .<£(=>33—Judgment of interpleader ends proceeding.</p> <p>Where, in an action at law, the answer of defendant .'is in the nature of a bill of interpleader, an order bringing in other parties as defendants and payment of the fund in controversy into court by the original defendant ends the interpleader proceeding, and the case may then proceed between the adversary parties, either at law or in equity, as the nature of the case may require.</p> <p>Hook, Circuit Judge, dissenting.</p>

Appeals from the District Court of the United States for the Southern District of New York. Suits in admiralty by McWilliams Bros., Incorporated, against the Director General of Railroads, operating the Pennsylvania Railroad and the steam tug P. R. R. 35. Decrees for libelant, and respondent appeals.

<p>Injunction <©=>59 (1)—Logs and logging <©=>3(1)—Contract construed, and held one for sale of standing timber, breach of which may be enjoined.</p> <p>A contract by which in terms defendant sold to complainant, all its timber of certain kinds situate in South Carolina, to be cut and delivered by defendant at complainant’s mill, the purchase price to be measured by the logs, which were to be measured and paid for as delivered, held one for the sale of standing timber, which, under the law of South Carolina, carries an interest in real estate, and a breach of which by defendant may be enjoined.</p>

Suit by the North British Rubber Company, Rimited, against the Racine Rubber Tire Company of New York, Incorporated. Erom a decree for defendant, plaintiff appeals. Suit is upon the design patent (45,092) issued to Alexander Johnson, of Edinburgh, Scotland, on December 30, 1913; application filed August 1, 1913.

<p>1. Carriers “§5=318(5)—Evidence held to show negligence in leaving open vestibule opposite to sHc ora which passenger was intending to alight.</p> <p>In an action for personal injuries to a passenger, who fell through the open vestibule of a moving train, evidence held to show that the door through which he fell was on the side of the train opposite to the side on which he was to alight, so that the carrier could have been found negligent in leaving that door open, though it would not have been negligence to have opened the door on the other side in preparation for the stop at the station where plaintiff was to alight, and which had already been announced.</p> <p>2. Carriers <S=>318(5)—Proof that passenger Ml from moving train and thereafter had Injuries is evidence they resulted from fall.</p> <p>Proof that a passenger fell from a train moving at a speed of 40 to 50 miles per hour, and that when he recovered consciousness he was in the hospital suffering from serious injuries, is sufficient to warrant finding his injuries resulted from the fall, without direct testimony to that effect.</p>

<p>In Error to the District Court of the United States for the District of New Jersey; J. Warren Davis, Judge.</p> <p>Criminal prosecution by the United States against Jacob S. Levy. Judgment of conviction, and defendant brings error.</p>

<p>1. War <§=>33—Did not cease on the day of the Armistice.</p> <p>T ie war did not cease on the day of the Armistice.</p> <p>2. Indictment and information <@=>01—Indictment need not allege state of war, which is judicially noticed.</p> <p>In a prosecution for injuring a telegraph line operated by the United States and used in furtherance of transportation of war materials and troops, the indictment need not allege that the United States was at war at the time the alleged offense was committed, for the court will take judicial notice of that fact.</p> <p>3. War <§=>4—Wire in telegraph line for railroad operation is part of “war premises” or "war utilities.”</p> <p>Wire, which formed part of a telegraph line then being operated by the United States and used as an aid to the transportation of war material and troops of the United States, cannot be distinguished from “war premises,” or “war utilities,” so that the stealing of such wire may be punished as an injury to war utilities.</p>

Fred Eowery and another were convicted of stealing coal from an interstate shipment, and with being in possession of the coal, knowing it to have heen stolen from an interstate shipment, and they bring error.

<p>In Error to the District Court of the United States for the Eastern District of South Carolina, at Charleston; Henry A. Middleton Smith, Judge.</p> <p>Action by Frank S. Markey and another, copartners in business under the firm name of the Independent Pulverized Manure Company, against Peter C. Brunson. Judgment for defendant on directed verdict, and plaintiffs bring error.</p>

<p>Appeal from the District Court of the United States for the District of Maryland, at Baltimore; John C. Rose, Judge.</p> <p>Suit by Howard P. Brydon against the Big Vein Coal Company of West Virginia. Decree for defendant, and complainant appeals.</p>

<p>Collision —Steamship in fault for «olilsion, tfoon^b dragging anchor.</p> <p>A decree finding- a steamship in fault for a collision caused by dragging her anchor during- a high wind and drifting against another anchored vessel held supported by the evidence.</p>

<p>In Error to the District Court of the United States for the District of Kansas; John C. Pollock, Judge.</p> <p>Action by the Northrup National Bank against Title Guaranty & Surety Company. Judgment for defendant, and plaintiff brings error.</p>

<p>In Admiralty. Libel in rem by the Swiss Confederation against the steamship Sun. On motion of the libelant for dedirmts potestatem to take testimony of witnesses abroad upon an open commission. Motion denied, without prejudice to libelant’s right to take out n commission upon interrogatories.</p>

<p>1. Courts <§=>372 (5)—Validity of limitation of liability for negligence in transmitting telegram is question of general law.</p> <p>The right of a telegraph company to contract for a limitation of its liability for negligence in the transmission of an intrastate telegram, in the absence of any state statute, is a question of general jurisprudence, on which the federal courts are not controlled by the decisions of the state courts.</p> <p>2. Telegraphs and telephones <§=>54 (5)—Limitation of liability for transmitting unrepeated telegram valid.</p> <p>In the absence of the statute to the contrary, a telegraph company can contract for limitation of liability for its negligence in transmitting an unrepeated telegram.</p>

<p>Removal of causes «§=19(8)—Action, against Emergency Fleet Corporation removable; “corporation of United States.”</p> <p>The United. States Shipping Board Emergency Fleet Corporation, incorporated pursuant to an act of Congress (Comp. St. §§ 8146a-8146r) under the laws of the District of Columbia, also enacted by Congress, is a corporation of the United States, and an action against it is removable as involving a federal question.</p>

<p>At law. Action by C. E. Bally, Limited, against the Quaker City Corporation. Finding for defendant. On motion for new trial.</p>

<p>1. Dismissal and nonsuit '©=^53(1)—Suit which had become moot should be dismissed on any showing of that fact.</p> <p>Though there is a question as to the propriety of considering an affidavit on motion to dismiss the bill, a suit should be dismissed in the interests of the public and the court whenever the controversy has become moot, regardless of how that issue Is presented or suggested.</p> <p>2. Municipal corporations <5=^955(2)'—Political activities of mayor against bond payments not acts of city, and though of evidential value are mot to be considered on motion to dismiss for want of equity.</p> <p>In a bill to compel a city to comply with its contract provisions for securing the payment of bonds, allegations that the mayor had been carrying on a campaign to intimidate city officers and cause default in the payment of the interest and the repudiation of the bonds, even though such activities may have evidential value as bearing on the attitude of the city, cannot he considered in determining motion to dismiss the hill for want of equity, since the acts of the mayor are not the acts of the city which in matters of that character can under its charter speak and act only by ordinance.</p> <p>3. Municipal corporations <©==954—Payment of interest into special fund month before due held contract requirement.</p> <p>In an ordinance authorizing the issuance of bonds, a section whereby the city irrevocably obligated itself to pay into a special fund from the gross revenues of its street railway system before each installment of interest falls due a sum equal thereto, and requiring the city treasurer one calendar month prior to the date on which the interest became due to set aside the amount thereof, the provision for setting the interest aside one month before dne is part of the contract obligation binding on the city and not merely a directory provision.</p> <p>4. Action <3=>0—-Suit to compel city to set aside fund for interest cn bonds mot moot in view of c»¿iíemtio», that city meed not Bay interest into upeeia! ftmid at time fixed, though iitetaMaieat doe has been paid.</p> <p>lu a suit to compel specific performance of a city’s obligation to set aside in a speeial Hind from the revenues of its street railway system the amount of the interest on its bonds one month before such interest became due, a contention by the city that the requirement of payment into such fund at the time specified was directory and not obligatory, which amounted to a threat to treat the fund in the same manner when future installments fell due, affects the market value of the bonds, so that the fact that the city had paid the interest installment then duo into such fund does not render the controversy moot.</p> <p>5. Municipal corporations ‘S^SSod)—Equity can enforce contract ©f city to provide fund for payment of interest on bonds.</p> <p>Equity can specifically enforce the provisions in a contract whereby a city obligated itself to pay from the gross revenues of its street railway system a sufficient amount to meet an installment of interest into a special fund for that purpose one month before payment is due, where the city contended that provision was directory, which amounted to a threat to disregard it when future installments fell due, since such enforcranent does not interfere with the governmental activities of the city and removes a cloud upon the bonds and avoids a multiplicity of actions in which the damages would be difficult of ascertainment.</p>

<p>1. Aliens *@=^61—Alien wife of alien husband cannot become naturalized citizen.</p> <p>The alien wife of an alien husband cannot become a naturalized citizen of the United States.</p> <p>2. Aliens <§=>88—Petition for naturalization must be “duly verified” before clerk.</p> <p>Under Naturalization Act June 29,1906, § 4, subd. 2 (Comp. St. § 4352), requiring a petition for admission to citizenship to be “duly verified,” such verification must he made before the clerk of the court or his authorized deputy as is required of the declaration of intention by paragraph 1 of said section.</p> <p>[Ed. Note.—B’or other definitions, see Words and Phrases, Duly Verified.]</p> <p>3. Aliens <®=^68—Service of notice on district attorney in naturalization proceeding sufficient.</p> <p>Service on the district attorney of notice of a motion by petitioner for naturalization heM sufficient.</p>

<p>1. Equity <§=499—Finding of special master on conflicting evidence not set aside, except for cogent reasons.</p> <p>Courts are slow to set aside findings of fact made by a special master on conflicting testimony, except for very cogent reasons.</p> <p>2. Waters and water courses <§=183 (5)—Proper method of ascertaining market value of water system purchased by city stated.</p> <p>Where a city, electing to purchase a waterworks system under a contract with the water company, is bound to pay the fair market value of the system as a going system, the replacement or reproduction method of ascertaining such fair and reasonable market value is proper, wlien a fair and reasonable amount for the going value is added, and there is deducted such reasonable sum as will fairly and justly measure the difference in value between a new plant so reproduced and the depreciated value of the old plant.</p> <p>3. Waters and water courses <§=>183 (5)—In computing cost of replacing system purchased by city, cost of cutting and replacing pavement improperly excluded.</p> <p>Where a city, electing to purchase a waterworks system under a contract with the water company, was required to pay the fair market value of the system as a going system, it was error to exclude, iu computing the replacement cost, the cost of cutting and replacing pavements over the water mains, though the pavement was laid by the city since the water mains were laid by the company.</p>

<p>1. Taxation @=>338—Mined sulphur held assessable as movable property, and not as part of realty.</p> <p>Sulphur, which had been removed from underground in a liquid state and allowed to solidify, is not part of the realty, but was properly assessed as movable property, though it was in such large blocks it would have to be blasted before it was loaded for shipment.</p> <p>2. Taxation <@=>319 (2) —Assessment appealed from is presumed to be correct.</p> <p>The assessment of property for taxation is presumed to be correct; the burden of proof which devolves upon the actor in all litigation being emphasized by the necessity of overcoming the presumption that the Legislature properly exercised its taxing power, and that taxing officers did not violate their sworn duty.</p> <p>3. Taxation <@=>611(6)—Evidence held not to show property was assessed at more than its real value.</p> <p>In a suit to restrain the sale of sulphur mine for taxation, which plaintiff claimed was based on an overassessment, computation of the value of the plaintiff’s property by an expert mining engineer and economist, though theoretically correct, held not to show the property was assessed above its real value, in view of discrepancies between the figures as to price and profit, adopted by the expert, and the past experiences of the company.</p> <p>4. Taxation <@=>40 (8)—Undervaluation of other property must be intentional and habitual, to establish unconstitutional discrimination.</p> <p>To establish discrimination in the assessment of property, contrary to the state and federal Constitutions, evidence that other property was undervalued in certain instances is not sufficient; but it must be shown that the undervaluation of such other property was intentional, systematic, and persistent.</p> <p>5. Taxation <@=>611(6)—Evidence held not to establish intentional discrimination in assessment.</p> <p>Evidence that oil lands in the state were assessed under a rule which made their total valuation less than their production for the year, and that the assessment of agricultural lands was 71 per cent, of the sale price of such lands, including credit as well as cash sales, held not to show such discrimination against the assessment of a sulphur mine, which was assessed at not to exceed its real value under a rule applied to salt mines, which were the only other similar property in the state, in view of testimony. of plaintiff’s own witness that the hoard of state affairs had, since its organization, been making an honest effort to assess all property at full cash value, as required by the state Constitution.</p>

<p>At Law.^ Action by the G. B. Markle Company against the Lehigh Valley_ Railroad Company on an award of the Interstate Commerce Commission, tried with two other cases. Judgments for plaintiffs.</p>

<p>I. Statutes —Imposing taxes strictly construed in favor of the cltfeen.</p> <p>A statute imposing taxes is not to be extended by implication beyond the clear import of the language used, and in case of doubt is to be construed most strongly against the government and in favor of the citizen.</p> <p>3. Powers <©=’41—Appointee under power takes from donor of power.</p> <p>It is the general rula of the common law that the appointee of an estate takes from the original donor, and not from the donee of (he power.</p> <p>3. Powers <©=^41—Appointed estate under general power subject in equity to debts of donee’s estate.</p> <p>Where a power of appointment is general, the appointed estate is subject in equity to the debts of the donee’s estate, but only in ease his own estate is insufficient.</p> <p>4. Internal revenue <©=>8—Property passing under appointment by donee of power not subject to estate tax.</p> <p>Property left in trust by the will of a testator who died prior to 1916, the income to be paid for life to a son with power to the son to dispose of the remainder by will, which power he exercised after 1916, hold not subject to tax under Estate Tax Act Sept. 8, 1916, § 202 (Comp. St. § 6336-&C).</p>

<p>In Equity. Suit by Ruth Elaine Elliott, a minor, by her next friend, Adeline M. Elliott, against the United States of America, David E. Houston, Secretary of the Treasury, and another, in which the United States had Adeline M. Elliott' and another made parties defendant. Motion to dismiss suit as to defendant David’F. Houston sustained, motion to transfer the cause to the law side of the court denied, and decree entered determining that defendant Mary Cecelia Elliott is the beneficiary of the war risk insurance involved.</p>

<p>1. Seamen <S==>33—Wrongful discharge entitles to penalty, though not in-presence of shipping commissioner.</p> <p>Where the captain, who has authority under Rev. St. § 4511 (Comp. St. § 8300), to hire and discharge seamen, wrongfully discharges men. without taking them before the shipping commissioner, as required by statute, the discharge, though illegal, is not void, but releases the men from, their obligations to the vessel, and entitles them to recover the penalty for wrongful discharge prescribed by Rev. St. §§ 4527, 4529 (Comp. St. §§ 8318, 8320).</p> <p>2. Seamen 4^33—Kefusal to accept compromise proposed by commissioner-defeats right to penalty.</p> <p>Where seamen who had been discharged by the captain before the-termination of the voyage took up with the shipping commissioner the-matter whether they were entitled to the statutory penalty, and the com-missioner determined the penalty should not be inflicted and attempted, to work out a compromise by having the captain retain the men at full pay, the refusal of the men to accept the proposed compromise defeated their right to the penalty, or any other right except to receive wages if they consented to discharge before the commissioner.</p>

<p>Accord and satisfaction <@=*23—Remedy for default specified in agreement not’ exclusive.</p> <p>Where a written agreement for settlement of a judgment provided that notes given by the debtor should be secured by a confession of judgment for the full amount of the original judgment, on which judgment might be entered in case of default, the fact that such confession was not executed held not to deprive the creditor of a right of action for breach of the contract by failure to rent the notes.</p>

<p>In Admiralty. Suit for collision by Anna D. McMullen, owner of the barge Hornbeek, against the steamship Costilla, with the tug Helen B. Moran impleaded.</p>

<p>Shipping <S=^>54—Charterer liable for injury to scow from unsafe berth.</p> <p>Where a scow was taken by the charterer as near to the pier of a contracting company, where it was to he unloaded as it could go at the state of the tide, and when the tide rose was hauled nearer by the contracting company, until it grounded where it was left overnight, and was injured by settling on an uneven bottom when the tide fell, the contracting company held primarily, and the charterer secondarily, liable for the damage.</p>

<p>Collision <§^=71 (2)—Navigation held negligent.</p> <p>A steamship, which grounded within 50 feet of the consignee’s wharf, where she was to discharge, and in pulling off went ahead at full speed, and continued such speed until she ran into another vessel at the wharf 150 feet away, hold solely in fault for the collision. The failure of the consignee to provide a berth which the ship could safely reach hold not a proximate cause of the collision.</p>

<p>Appeal from the Commissioner of Patents.</p> <p>Interference proceeding between John Bailey Browning and Eldridge R. Johnson. From a decision awarding to the latter, the former appeals.</p>

<p>Appeal from the District Court of the United States for the Northern District of West Virginia, at Philippi. Herbert R. Preston and A. Hunter Boyd, Jr., both of Baltimore, Md., and Geo. M. HofCheimer, of Clarksburg, W. Va., for appellant. Rush C. Butler and Frank E. Harkness, both of Chicago,_ 111., John A. Howard, of Wheeling, W. Va., Blackburn Esterline, Sp. Asst. At’ty- Gen., and P. J. Farrell, Chief Counsel Interstate Commerce Commission, of Washington, D. u., for appellee.</p>

<p>In Error to the District Court of the United States for the Eastern Division of the Northern District of Ohio; D. C. Westenhaver, Judge. Bulkley, Hauxhurst, Saeger & Jamison, of Cleveland, Ohio, for plaintiff in error. Calfee, Fogg & White, of Cleveland, Ohio, for defendant in error.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Oklahoma. James J. Mars, of Sapulpa, Old., for ¿ppellants. Irwin Donovan, of Muskogee, Okl., for appellees.</p>

<p>In Error to the District Court of the United States for the Eastern Division of the Northern District of Ohio; D. C. Westenhaver, Judge. Cook, McGowan, Foote, Bushnell & Lamb, of Cleveland, Ohio, and Hine, Kennedy, Manchester, Conroy & Ford, of Youngstown, Ohio, for plaintiff in error. Anderson, Lamb & Osborne, of Youngstown, Ohio, and J. J. Tetlow, of Cleveland, Ohio, for defendant in error.</p>

<p>In Error to the District Court of the United States for the Eastern District of Louisiana; Rufus E. Foster, Judge. Diego Escolar was convicted of unlawfully dealing in morphine, and he brings error. Affirmed. Jose A. Morales, of New Orleans, La. (Jose A. Morales and Henry J. Rhodes, both of New Orleans, La., on the brief), for plaintiff in error. Henry Mooney, U. S. Atty., of New Orleans, La. (William J. O’Hara, Asst. U. S. Atty., of New Orleans, La., on the brief), for the United States. Before WALKER, BRYAN, and KING, Circuit Judges.</p>

Jack, Judge. Suit in equity by tlie Higgins Oil & Fuel Company and' others against J. B. Delaney and others. Decree for defendants, and complainants appeal. Affirmed on opinion below. 203 Fed. 931. S': L. Hcrold and J. A. Thigpen, both of Shreveport, La., for appellants. John S. Richardson, o£ Homer, La., and W. D. Goff, of Arcadia, La., for appellees. Before WALKER, BRYAN, and KING, Circuit Judges.

<p>Appeal from the District Court of tlie United States for the Eastern District of South Carolina, at Charleston. Frank G. Tompkins, of Columbia, S. C., for appellants. Frank R. Frost, of Charleston, S. O., for appellee.</p>

<p>Petition to Revise Order of the District Court of the United States for the District of Kansas. Paul H. Kimball and Webster W. Kimball, both of Parsons, Kan., for petitioner. W. P. Dillard, of Ft. Scott, Kan., for respondents.</p>

<p>Wilber Owen, of Toledo, Ohio, Chester II. Braselton, of Dayton, Ohio, and E. B. Whitcomb, for petitioners. Allen & Allen, of Cincinnati, Ohio, for respondent.</p>

<p>In Error to the District Court of the United States, for tlie District of Nebraska. Francis A. Brogan, Alfred G. Ellick, and Anan Raymond, all of Omaha, Neb., for plaintiffs in error. F. H. Gaines and E. G. McGilton, both of Omaha, Neb., for defendant in error.</p>

<p>In Error to the District Court of the United States for the Western District of Virginia, at Harrisonburg. R. B. Stephenson and George A. Revercomb, both of Covington, Va., for plaintiff in error. Jos. H. Chitwood, U. S. Atty., of Roanoke, Va., for defendant in error.</p>

<p>Appeal from the District Court of the United States for the Western District of Tennessee; John E. McCall, Judge. W. C. Cherry, of Nashville, Tenn., and A. J. Donelson, of Memphis, Tenn.,* for appellant. Charles Jacobson and X. O. Pindall, both of Little Rock, Ark., for appellees.</p>

<p>Appeal from the District Court of the United States for the District of Colorado. G. Dexter Blount and Harry S. Silver-stein, both of Denver, Colo., for appellant. Edwin H. Park, of Denver, Colo., for appellee.</p>

<p>Appeal from the District Court of the United States for the Western Division of the Northern District of Ohio; John M. Killits, Judge. Allen J. Seney, Ex-Pros. Atty., and Roy R. S.tuart, Pros. Atty., both of Toledo, Ohio, for appellants. Tracy, Chapman & Welles, of Toledo, Ohio, for appellee.</p>

<p>In Error to the District Court of the United States for the District of Minnesota. George T. Olsen, of St. Peter, Mirtn., and Henry N. Somsen, W. H. Dempsey, and H. H. Flor, all of New Ulm, Minn., for plaintiffs in error. Stan D. Donnelly, of St. Paul, Minn., for defendant in error.</p>

<p>Appeal from the District Court of the United States for the Southern District of Iowa. .Willard Eddy, of Omaha, Neb., and Albert E. Dieterich, of Washington, D. C., for appellant. Ralph Orwig and W. P. Bair, both of Des Moines, Iowa, and H. A, Toulmin, of Dayton, Ohio, for appellees.</p>

Holmes, Judge. Suit by Stokes Y. Robertson, State Revenue Agent, against the Ingram-Day Lumber Company, brought in a Mississippi state court. Removed to federal court. Decree for defendant, and complainant appeals. Reversed, with instructions to remand to the state court. F. C. Hathorn, of Hattiesburg, Miss., for appellant. W. A. White, of Gulfport, Miss., for appellee. Before WALKER, BRYAN, and KING, Circuit Judges.

<p>Appeal from the District Court of the United States for the Western District of Arkansas. James B. McDonough, of Ft. Smith, Ark., for appellants. G. O. Patterson, of Clarksville, Ark., and Joseph M. Hill and Henry L. Fitzhugh, both of Ft. Smith, Ark., for appellee.</p>

<p>Appeal from the District Court of the United States for the Western District of Arkansas. James B. McDonough, of Ft. Smith, Ark., for appellants. G. O. Patterson, of Clarksville, Ark., and Joseph M. Hill and Henry L. Fitzhugh, both of Ft. Smith, Ark., for appellee.</p>

<p>Petition to Revise an Order of the Federal Trade Commission. Niman, Grossman, Buss & Holliday, of Cleveland, Ohio, for petitioner. Marvin Farrington, of Washington, D. C., Acting Chief Counsel for the Federal Trade Commission, l'or respondent.</p>

<p>In Error to the District Court of the United States for the Eastern District of Missouri. A. Samuel Bender, of St. Douis, Mo., for plaintiff in error. James E. Carroll, U. S. A.tty., of St. Louis, Mo.</p>