ABATEMENT AND REVIVAL.

II. ANOTHER ACTION PENDING.

9 (U.S.C.C.A.Mich.) Plaintiff has right to
sue user for infringement of patent in one cir-
cuit, although having suit pending against man-
ufacturer in another circuit.-Wenborne-Kar-
pen Dryer Co. v. Dort Motor Car Co., 14
F. (2d) 378.

ACCORD AND SATISFACTION.

19 (U.S.C.C.A.W.Va.) Execution of individ-
ual renewal note in name of partnership held
not accord and satisfaction, barring recovery
against bankrupt estate of individual as well as
partnership, in view of circumstances and un-
derstanding that individual was liable thereon.-
Martin v. Breckenridge, 14 F. (2d) 260.

An "accord and satisfaction" is not new prom-
ise itself, but performance of new promise that
is accepted as satisfaction.-Id.

ACTION.

I. JURISDICTION.
(U.S.C.C.A.N.J.) Court of admiralty may
nonmaritime claims.-The Kearney, 14 F. (2d)
not retain jurisdiction acquired to adjudicate
949.

A cause of action enforceable in admiralty
must be wholly maritime.-Id.

22 (U.S.C.C.A.N.J.) Court of admiralty is
without jurisdiction of claim for injury by ves-
sel to bridge.-The Kearney, 14 F. (2d) 949.
II. REMEDIES IN PERSONAM AND IN

REM.

32 (U.S.C.C.A.Cal.) Libel in rem against
two barges held properly brought in Southern
Division of Northern District of California,
though barges were seized in Northern Division
of such district in view of Judicial Code, § 72,
as amended by Act May 16, 1916 (Comp. St. §
1057), and admiralty rule 22.-The Barge No.
25, 14 F. (2d) 107.

32 (U.S.D.C.N.Y.) District Court of East-
ern District of New York has jurisdiction of
Maine corporation impleaded in libel suit_and
having office in Southern District of New York

I. GROUNDS AND CONDITIONS PRE-

CEDENT.

6 (U.S.D.C.Mich.) Moot questions will not
be passed on.-Detroit Trust Co. v. Schantz, 14
F. (2d) 225.

II. NATURE AND FORM.

24 (U.S.C.C.A.Or.) Under Act March 3,
1915 (Comp. St. §§ 1251a-1251c), proof of fraud
inducing execution of release of liability for
death is available in court of law.-Whitney Co.
v. Johnson, 14 F. (2d) 24.

31 (U.S.C.C.A.) Defendant, by answering
complaint and participating in trial in equity
without objection, may waive its right to a trial
of its case as an action at law by a jury.-Hen-
derson Tire & Rubber Co. v. Reeves, 14 F. (2d)
903.

36 (U.S.D.C.N.Y.) Equitable defense inter-
posed by answer converts suit at law to one
in equity, and requires transfer to equity side
of court (Judicial Code, $ 274b [Comp. St.
1251b]).-Woodbury v. Andrew Jergens Co., 14
F. (2d) 956.

III. JOINDER, SPLITTING, CONSOLIDA-
TION, AND SEVERANCE.

50 (4) (U.S.D.C.Ohio) Cause of action
against United States to recover federal estate
tax erroneously or illegally assessed held im-
properly joined with similar cause of action
against collector.-Stark v. U. S., 14 F. (2d) 616.
ADMIRALTY.

sixth rule in admiralty); "residence."-The Res-
olute, 14 F. (2d) 232.

32 (U.S.D.C.N.Y.) Foreign corporation
does not have place of business in New York,
necessary to there sue United States under
Suits in Admiralty Act, because other distinct
corporation there sells on commission for ac-
count of foreign corporation (Comp. St. §§
12514-125147).-Galban Lobo & Co., S. A., v.
U. S.. 14 F. (2d) 435.

personam

34 (U.S.D.C.Mass.) Suit in
against Emergency Fleet Corporation held not
barred by limitation (Suits in Admiralty Act, §§
2, 5 [Comp. St. Ann. Supp. 1923, §§ 12514a,
12514d]).-Marshall Hall Grain Co. v. U. S.
Shipping Board Emergency Fleet Corporation,
14 F. (2d) 141.

X. COSTS.

57 (U.S.D.C.Ga.) Bond given by claimant
shipowners, in suit in rem for salvage, held not
to take place of released ship, relative to sub-
sequent claim of cargo to be released from
salvage liability because of ship's unseaworthi-
ness. The Silverway, 14 F. (2d) 154.

alty rule 7, successful owner of libeled vessel
was entitled to recover amount it would have
been compelled to expend for surety bond to
have vessel released and not to larger amount
of interest on cash bond deposited.-The Wol-
sum, 14 F. (2d) 371.

AGENCY.

IV. PLEADING, PETITIONS, AND MO-
TIONS.

59 (U.S.D.C.N.Y.) Strictness of pleading
required at common law is not required in ad-
miralty. The Russell No. 3, 14 F. (2d) 642.

60 (U.S.D.C.Conn.) Libels of information
for forfeiture are in the nature of indictments,
to which, though filed in an admiralty court, the
liberal rules of admiralty pleading do not apply.
-The J. Duffy, 14 F. (2d) 426.

60 (U.S.D.C.Or.) That part of libel in rem
on admiralty side of court, which attempted to
set out statute of state, held improper.-The Sil-
verado, 14 F. (2d) 243.

62 (U.S.C.C.A.N.J.) Cross-libel may be
filed on counterclaim arising out of action al-
leged in original libel if counterclaim is mari-
time (Const. Amend 7).-The Kearney, 14 F.
(2d) 949.

Cross-libels are rather strictly construed.

VIII. DECREE AND ENFORCEMENT
THEREOF.

93 (U.S.C.C.A.Cal.) Denial of application
to open default decree held not abuse of discre-
tion, where counteraffidavit conflicted with affi-
davits as to oral agreement for extension of time
supporting it.-The Barge No. 25, 14 F. (2d)
107.

Ruling on motion to set aside default rests
in discretion of court; rule not being altered
by rules effective March 7, 1921.-Id.

101 (U.S.C.C.A.Va.) Intervention to assert
lien for taxes held timely.-Colonna's Shipyard
v. Rowe, 14 F. (2d) 267.

IX. APPEAL.

118 (U.S.C.C.A.N.J.) Findings of trial
judge, who saw and heard the witnesses, en-
titled to great weight.-The Patriotic, 14 F.
(2d) 897.

118 (U.S.C.C.A.N.J.) Fact found by trial
judge, who saw and heard the witnesses, must
stand on appeal, unless clearly against the evi-
dence. The Kearney, 14 F. (2d) 949.

118 (U.S.C.C.A.Pa.) Finding by judge, who
saw the witnesses, should stand, unless clear-
ly against the evidence.-Grace v. Ellerman-
Bucknall S. S. Co., 14 F.(2d) 902.

AGRICULTURE.

(U.S.D.C.Va.) Where Cedar Rust Law
Va. was adopted in district, readoption after
amendment held unnecessary (Code, Va. 1919,
$$ 885-893; Acts 1920, c. 260).-Kelleher v.
Schoene, 14 F. (2d) 341.

Virginia Cedar Rust Law held within police
power and constitutional (Code Va. 1919, §§
885-893).-Id.

92 (U.S.D.C.Va.) Cedar Rust Law Va., as
originally enacted, held applicable to trees within
two miles of apple orchard (Code Va. 1919, §§
Schoene, 14 F. (2d) 341.
885-893; Acts 1920. C. 260).-Kelleher v.

ALIENS.

III. IMMIGRATION..

39 (U.S.D.C.Vt.) Execution order and rule
of State Department requiring alien visitors to
present passports visaed by consul held au-
thorized and effective (Comp. St. § 7628hh).—U.
S. ex rel. Johanson v. Phelps, 14 F. (2d) 679.

46 (U.S.D.C.N.Y.) Immigration authorities
may exclude alien applying for temporary entry
as visitor.-U. S. ex rel. Porter v. Yale, 14 F.
(2d) 682.

plying for admission as visitors approved.-U. S.
46 (U.S.D.C.Vt.) Exclusion of aliens ap-
ex rel. Johanson v. Phelps, 14 F. (2d) 679.

53 (U.S.D.C.N.Y.) Immigration authorities
are not bound to admit alien as visitor on giving
bond.-U. S. ex rel. Porter v. Yale, 14 F. (21)
682.

54(6) (U.S.C.C.A.) Where alien had fair
hearing in deportation proceedings, minor ir-
regularities, as failure to read to him warrant
for arrest, held not vital.-Seif v. Nagle, 14
F. (2d) 416.

54(9) (U.S.C.C.A.N.Y.) Alien held to have
sustained burden of showing five years' continu-
ous residence in Buenos Aires, entitling him to
be admitted under nonquota provisions of immi-
gration law.-U. S. ex rel. Kozak v. Curran, 14
F. (2d) 112.

54(10) (U.S.C.C.A.) Hearing in deporta-
tion proceedings held not unfair for failure at
once to inform as to right to counsel.-Seif v.
Nagle, 14 F. (2d) 416.

54(13) (U.S.C.C.A.) Warrant of deporta-
tion held properly amended, where place from
whence he came had become territory of dif-
ferent nation.-Seif v. Nagle, 14 F. (2d) 416.

Warrant of deportation held not invalidated
by delay in its execution.-Id.

58 (U.S.D.C.N.Y.) Vessel whose master
discharged alien seamen in American port, after
notice to detain them to board, held subject to
penalty (Immigration Act 1917, §§ 32, 33
[Comp. St. §§ 42891⁄4r, 42894rr]).-The Limon,
14 F. (2d) 153.

IV. NATURALIZATION.

60 (U.S.D.C.Wash.) Statutes granting
privilege of citizenship should be strictly con-
strued and followed.-In re Kempson, 14 F. (2d)
668.

62 (U.S.D.C.Wash.) Legal residence of
alien who arrived March 4, 1919, and reported
for inspection and paid head tax February 5,
1926, did not commence until February 5, 1926

65 (U.S.D.C.Va.) Alien, who served three
years in Coast Guard service, held not entitled
to naturalization on affirmative proof that he
had not been a resident for five years (Comp.
St. §§ 4352, 4360).—In re Sandstrom, 14 F. (2d)
675.

68(1) (U.S.D.C.Wash.) Under Comp. St.
$$ 963, 42894b, and section 4352, subd. 2, in-
spection and registration of aliens on arrival,
and filing with petition for citizenship in of-
fice of clerk of court of a certificate of arrival

and declaration of intention, are prerequisite
to valid petition for citizenship.-In re Kemp-
son, 14 F. (2d) 668.

68 (2) (U.S.D.C.N.Y.) A declaration of in-
tention, filed in county other than that in which
applicant for citizenship resided, conferred no
jurisdiction on New York state court under nat-
uralization statute.-U. S. v. Fox, 14 F. (2d)

242.

68 (2) (U.S.D.C.Wash.) Under Comp. St.
§§ 963, 42894b, and section 4352, subd. 2, in-
spection and registration of aliens on arrival,
and filing with petition for citizenship in office
of clerk of court of a certificate of arrival and
declaration of intention, are prerequisite to
valid petition for citizenship.-In re Kempson,
14 F. (2d) 668.

68 (3) (U.S.D.C.Fla.) Alien will not be de-
barred from admission to citizenship because
he came into country only for visit, and his cer-
tificate of entry is marked "in transit."-In re
Patience, 14 F. (2d) 624.

That an alien's certificate of entry was marked
"in transit" and he was not required to pay
head tax, does not debar him from remaining
permanently and, on subsequent payment of the
tax, becoming a naturalized citizen.-Id.

68(3) (U.S.D.C.Wash.) Under Comp. St.
§§ 963, 42894b, and section 4352, subd. 2, in-
spection and registration of aliens on arrival,
and filing with petition for citizenship in office

of clerk of court of a certificate of arrival and
declaration of intention, are prerequisite to
valid petition for citizenship. In re Kempson,
14 F. (2d) 668.

Alien has not "arrived" until he has passed re-
quired examinations to determine whether he
is in excluded classes; "arrival" (Comp. St. §
963, and section 4352, subd. 2).-Id.

Department of Labor cannot dispense with
filing of certificate of arrival by applicant for
citizenship (Comp. St. § 963, and section 4352,

subd. 2).-Id.

LATE JURISDICTION.

23 (U.S.C.C.A.Mo.) First question for ap-
pellate court, in every case, is that of jurisdic-
tion, first of itself, and then of the trial court.
-Highway Const. Co. v. McClelland, 14 F. (2d)
406.

V. PRESENTATION AND RESERVATION
IN LOWER COURT OF GROUNDS
OF REVIEW.

(A) Issues and Questions in Lower Court.
made in lower court as to matter claimed to de-
173(1) (U.S.C.C.A.Tenn.) Contention not
feat recovery will not be considered on writ
of error.-National City Bank v. Carter, 14 F.
(2d) 940.

(B) Objections and Motions, and Rulings

Thereon.

184 (U.S.C.C.A.China) Objection that pe-
tition was insufficient and that plaintiff's reme-
dy was at law will not be considered on appeal
from decree of United States Court for China,
where defendant participated in trial without ob-
jection.-Andersen, Meyer & Co. v. Fur & Wool
Trading Co., 14 F. (2d) 586.

215(1) (U.S.C.C.A.Pa.) Objection cannot
be first made on appeal to form of submission of
particular question.-Air Reduction Co. v. Phil-
adelphia Storage Battery Co., 14 F. (2d) 734.

215 (3) (U.S.C.C.A.Pa.) Failure to object
to form of submission of question does not pre-
clude party from raising question that there was
no evidence to warrant submission of issue at
all.-Air Reduction Co. v. Philadelphia Storage
Battery Co., 14 F. (2d) 734.

(C) Exceptions.

273 (5) (U.S.C.C.A.Alaska) General excep-
tion to instruction covering several propositions
of law does not bring before appellate court
question of whether lower court erred in stating
one of issues.-Killisnoo Packing Co. v. Scott,
14 F. (2d) 86.

ing of written instructions offered held insuffi-
273 (5) (U.S.C.C.A.Mo.) Exception to giv-
cient to raise any question for Circuit Court
of Appeals.-Chicago, M. & St. P. Ry. Co. v.
Harrelson, 14 F. (2d) 893.

273(5) (U.S.C.C.A.Pa.) In federal trial
courts, general exception to a charge cannot of
right be asked, and, when granted, is not rec-
ognized by appellate court.-Delaware & H. Co.
v. Nahas, 14 F. (2d) 56.

Where no record of inspection or examination
of applicant for citizenship was made at time
of entry, he was entitled to nune pro tunc cer-
tificate of entry under Comp. St. § 963, and
section 4352, subd. 2.-Id.

711⁄2 (11) (U.S.D.C.N.Y.) Federal District
Court has jurisdiction to cancel certificate of
citizenship illegally granted by a state court.—
U. S. v. Fox, 14 F. (2d) 242.

274(5) (U.S.C.C.A.Alaska) In action under
Employers' Liability Law Alaska, general ex-
ception to instruction that person who has lost
one eye and loses remaining eve is totally dis-
abled does not raise question of whether answer
admitted eye was lost in course of employment.
-Killisnoo Packing Co. v. Scott, 14 F. (2d) 86.

of appeal therefrom.-The Barge No. 25, 14
F. (2d) 107.

weight of evidence or induced by erroneous
construction of law.-Bailey v. Smith, 14 F. (2d)
519.

XVI. REVIEW.

(A) Scope and Extent in General.
842 (9) (U.S.C.C.A.Wyo.) Conclusion of
trial court as to fraud is mixed one of law and
fact.-U. S. v. Mammoth Oil Co., 14 F. (2d) 705.

(C) Parties Entitled to Allege Error.

1013 (U.S.C.C.A.China) Allowance to buy-
er of furs from assassin and robber of amounts
paid for marketing furs will not be disturbed
on appeal, in absence of error or fraud.-Ander-
sen, Meyer & Co. v. Fur & Wool Trading Co.,
14 F.(2d) 586.

(H) Harmless Error.

In suit to enjoin insurance commissioner's
enforcement of order, defendant held estopped
by stipulations filed to complain of alleged im-
propriety in determining validity of affirmative
defenses on motion to strike out answer.-Id.

(E) Presumptions.

927(2) (U.S.C.C.A.Neb.) Decree of dismis-
sal raises presumption that finding for de-
fendant should be sustained, in absence of se-
rious mistake of fact or erroneous view of
law, though record contains no findings.-Drake
v. Thompson, 14 F. (2d) 933.

930(1) (U.S.C.C.A.Tenn.) Theory of facts,
accepted as true by jury, must be accented as
true on writ of error.-National City Bank v.
Carter, 14 F. (2d) 940.

931(1) (U.S.C.C.A.Okl.) Findings of chan-
cellor are presumably correct.-Bailey v. Smith,
14 F. (2d) 519.

1050(2) (U.S.C.C.A.Pa.) In action for neg-
ligent installation of oxygen discharging mani-
fold, testimony that witness had told head of
defendant's engineering department that ma-
terial was not proper for charging manifold held
either harmless, as irrelevant, or pertinent, as
showing defendant's knowledge.-Air Reduction
Co. v. Philadelphia Storage Battery Co., 14 F.
(2d) 734.

1056(1) (U.S.C.C.A.Ind.) In action against
surety company, where apparent authority of
defendant's agent was undisputed, exclusion of
evidence of limitations on his authority held not
prejudicial.-Federal Surety Co. v. Millspaugh
& Irish Corporation, 14 F.(2d) 937.

1061 (4) (U.S.C.C.A.Ill.) In action to re-
cover tax paid under protest, directing verdict
for defendant on erroneous theory that case
was controlled by another held not reversible
error on whole record.-Wickwire v. Reinecke,
14 F.(2d) 956.

1068 (3) (U.S.C.C.A.Utah) Plaintiff not be-
ing entitled to recover, under the evidence, any
error in giving instructions was not prejudicial
to him.-Petersen v. Wellsville City, 14 F. (2d)

984(1) (U.S.C.C.A.China) In absence of
proof of error or abuse of discretion in disallow-
ing cost bill, such ruling is not reviewable on
appeal.-Andersen, Meyer & Co. v. Fur & Wool
Trading Co., 14 F. (2d) 586.

(G) Questions of Fact, Verdicts, and
Findings.
994 (2) (U.S.C.C.A.Tex.) It is province of
District Judge to pass on credibility of witness-
es.-Conn v. Roos, 14 F. (2d) 64.

994 (3) (U.S.C.C.A.Wyo.) Appellate
court
has same right to draw conclusions from silence
or evasiveness of witness as has trial court.-U.
S. v. Mammoth Oil Co., 14 F.(2d) 705.

could encroach little on defendant in determining
damage to crops from smelter smoke held not
error, where verdict was not excessive.-United
Verde Copper Co. v. Jordan, 14 F. (2d) 299.

1068(5) (U.S.C.C.A.Utah) Plaintiff not be-
ing entitled to recover, under the evidence, any
error in refusing instructions was not prejudi-
cial to him.-Petersen v. Wellsville City, 14
F. (2d) 38.

1073(1) (U.S.C.C.A.Kan.) That court, even
if without power, orders costs to be taxed to
plaintiff, the United States, held not ground for
reversal of judgment of dismissal.-U. S. v.
George A. Fuller Co., 14 F. (2d) 813.

APPEARANCE.

997 (3) (U.S.C.C.A.Neb.) In reviewing
rection of verdict where at conclusion of evidence
both parties move for directed verdict and do
nothing more, appellate court is limited to ques-
tions whether there was substantial evidence to
support verdict, and whether there was error in
applying law.-Jackson v. Bell, 14 F. (2d)61.

1002 (U.S.C.C.A.III.) Conclusions of jury
on facts as to which evidence is in conflict must
be accepted by appellate court.-Fleischmann
Malting Co. v. Mrkacek, 14 F. (2d) 602.

1008 (3) (U.S.C.C.A.Cal.) Rule that find-
ings of fact are entitled to great weight on ap-
peal is modified, where they are based wholly
on depositions.-The Natal, 14 F. (2d) 382.

1009 (3) (U.S.C.C.A.Okl.) Findings of fact
made by the chancellor on conflicting evidence
sustained.-Bailey v. Smith, 14 F. (2d) 519.

1009 (4) (U.S.C.C.A.Okl.) Findings of chan-
cellor will not be disturbed unless clearly against

ARGUMENT OF COUNSEL.
See Criminal Law, 706–722.

ARMY AND NAVY.

512 [New, vol. 12A Key-No. Series]
(U.S.D.C.Mass.) "Illicit cohabitation,"
as affecting rights of beneficiary of war risk in-
surance certificate, has narrower meaning than
"illicit intercourse."-Thomas v. U. S., 14 F. (2d)
228.

Evidence held to show "open and notorious il-
licit cohabitation" within statute affecting rights