21 F.(2d) 692 or judgments, for errors of fact or law, after the term in which they have been rendered, unless for clerical mistakes. That no change or modification can be made, which may substantially vary or affect it in any material thing. •.• Whatever was before the court, and is disposed of, is considered as finally settled. The inferior court is bound by the decree as the law of the case, and must carry it into execution, according to the mandate. They cannot vary it, or examine it for any other purpose than execution; nor give any other or further relief; nor review it upon any matter decided on appeal, for error apparent; nor intermeddle with it, further than to settle so much as has been remanded." This rule was restated by the Supreme Court in Ex parte Union Steamboat Co., 178 U. S. 317, 20 S. Ct. 904, 44 L. Ed. 1084, and again in Sanford Fork & Tool Co., 160 U. S. 255, 16 S. Ct. 291, 40 L. Ed. 414, and in Re Potts, 166 U. S. 263, 17 S. Ct. 520, 41 L. Ed. 994, it was ruled that if a rehearing, in a case decided by the Supreme Court, is to be had, it can only be by its discretion. Upon this point it was said: "When the merits of a case have been once decided by this court on appeal, the Circuit Court has no authority, without express leave of this court, to grant a new trial, a rehearing or a review, or to permit new defenses on the merits to be introduced by amendment of the answer." [2] This rule is believed to be of general application. The contention that the Circuit Court of Appeals possessed jurisdiction to review only the question of validity of the patent and its infringement by defendant is believed untenable. No adjudications are cited to show that an issue, not determined by the trial court, may not be passed upon by the appellate court. Indeed, the rule is to the contrary, and frequently decisions on appeal affirm or reverse on questions not passed upon by the court of original jurisdiction. Plaintiff's insistence that its claim of equitable estoppel was presented and diligently represented in argument and in the briefs on appeal certainly warrants the presumption that it was not ignored or overlooked, even though the opinion makes no reference thereto. Indeed, the decision on the application for rehearing is a direct holding, as heretofore pointed out, that the questions submitted, including equitable estoppel, were before the court and passed upon. [3] On the point of the asserted right to present additional evidence, it must be held that there is no power in this court to reopen the case because the mandate does not, either in direct terms or by implication, direct considering any. It would be in violation of the mandate to do so. Gaines v. Rugg, 148 U. S. 228, 13 S. Ct. 611, 37 L. Ed. 432; Re Washington & G. R. Co., 140 U. S. 91, 11 S. Ct. 673, 35 L. Ed. 339; Dubuque R. Co., 1 Wall. (68 U. S.) 69, 17 L. Ed. 514; Stewart v. Salamon, 94 U. S. 434, 24 L. Ed. 275. The words "further proceedings," embodied in the mandate, do not mean that further proceedings should be taken upon any question at issue, and decided, but mean that a decree shall be entered conforming with the decision of the appellate court reversing the lower court and dismissing the bill. Moreover, as pointed out by defendant, the additional evidence is not shown to be newly discovered evidence, or that it was not known to plaintiff prior to the decision by this court, or that it could not have been discovered earlier by reasonable diligence. The questions argued at the bar require no enlargement, since this court is convinced that its duty is to obey the mandate of the Circuit Court of Appeals by permitting the entry of final decree, submitted by defendant, and dismissing the bill as therein provided. So ordered. Ex parte MOURATIS. District Court, N. D. California. S. D. September 15, 1927. No. 19360. Habeas corpus 96-Order of deportation Is not set aside on habeas corpus because strict rules of evidence were not followed where hearing was fair. An order of deportation may not be set aside by the court in habeas corpus proceedings because based on reports of inspectors and affidavits of absent witnesses, where the alien was given opportunity of rebuttal, nor because the court may think the evidence insufficient if there was a fair hearing. Habeas Corpus. On demurrer to petition of Nick Mouratis for writ of habeas corpus. Demurrer sustained and petition denied. Henry Heidelberg, of San Francisco, Cal., for petitioner. George J. Hatfield, U. S. Atty., and Richard M. Lyman, Jr., Asst. U. S. Atty., both of San Francisco, Cal., for respondent. KERRIGAN, District Judge. This is a petition for habeas corpus on behalf of Nick Mouratis, a male alien, aged 49, a native and citizen of Greece, who entered the United States at the port of New York in 1903. He was arrested in warrant proceedings by the immigration authorities under section 19 of the Act of February 5, 1917 (8 USCA § 155), and ordered deported upon the ground that he has been found connected with the management of a house of prostitution, and that he has been found assisting a prostitute. The matter comes before me on demurrer to the petition. The evidence upon which the deportation order was based consists of the reports of immigration inspectors as to two visits to the premises occupied by petitioner prior to issuance of the warrant, together with statements secured by one inspector on the second visit from the petitioner, from a lodger, and from Jane O'Neil, the alleged prostitute. These statements were sworn to in the presence of the inspector. In addition there is testimony given by the inspector at the hearing. Petitioner was given opportunity to prepare for the hearing and to have counsel present. His evidence and that of a lodger, also arrested, against whom the charge has been dismissed, is in conflict with the evidence on behalf of the immigration service. The petition is based upon the denial of a fair hearing, in that the evidence upon which the deportation was based was hearsay, and particularly that Jane O'Neil, whose statement was especially damaging to petitioner, was not produced in person. In connection with the statement of Jane O'Neil, it appears, that the inspector in charge of the hearing asked: "In reference to the statement of Jane O'Neil, do you wish to cross-question her?" The reply was: "No questions, but I object to the admission of the statement on the ground that it is incompetent, immaterial, and irrelevant, containing hearsay and conclusions and opinions of the witness." Examination of the record in this case shows that there is evidence to sustain the finding of the board and that petitioner had a "fair hearing" as defined in the cases. As said in U. S. ex rel. Mandel v. Day (D. C.) 19 F.(2d) 520, 521: "The court can go no further than to see if the alien had a fair hearing, if there was any abuse of discretion on the part of administration officials, and if there is any evidence to sustain the finding. The main question is: Was there any evidence upon which the finding was based? The mere fact that the court feels that the evidence is not sufficient for the finding would not lead to a reversal. "There is no judicial power to review' or reverse a finding of fact based upon evidence.' Low Wah v. Backus, 225 U. S. 460, 32 S. Ct. 734, 56 L. Ed. 1165; Gegiow v. Uhl, 239 U. S. 3, 36 S. Ct. 2, 60 L. Ed. 114; U. S. ex rel. Brugnoli v. Tod (D. C.) 300 F. 913, at page 915." The courts have held that a hearing is not unfair because of the admission of the reports of inspectors (Yip Wah v. Nagle [C. C. A.] 7 F.[2d] 426); nor because of the fact that the strict rules of evidence have not been followed (Bilokumsky v. Tod, 263 U. S. 149, 44 S. Ct. 54, 68 L. Ed. 221); nor because the court may consider that the weight of the evidence points to a contrary decision (Tisi v. Tod, 264 U. S. 131, 44 S. Ct. 260, 68 L. Ed. 590); nor because affidavits of absent persons were introduced where petitioner was given ample opportunity to rebut the evidence therein contained (Yip Wah v. Nagle [C. C. A.] 7 F.[2d] 426; Ex parte Pouliot [D. C.] 196 F. 437). See, also, Ghiggeri v. Nagle (C. C. A.) 19 F.(2d) 875. In view of these cases, I am constrained to hold that petitioner was not denied a fair hearing. I cannot refrain, however, from commenting upon the fact that petitioner is suffering a very heavy penalty in being deported after 24 years of residence in this country on the 21 F.(2d) 695 evidence of the arresting officer and of a prostitute. It appears doubtful whether such evidence would satisfy a jury. While administrative hearings must necessarily be somewhat summary, this should not, it seems to me, prevent the examining boards from adopting an impartial judicial attitude and weighing the evidence with a view to protecting the rights of the alien to the same extent that the courts endeavor to protect the rights of defendants who are tried before them. Too often their attitude appears to be that of the "hanging judges" of the seventeenth century. Demurrer sustained. Petition denied. UNITED STATES ex rel. DE VISSER v. FLYNN, District Director of Immigration. and instead worked about the harbor at Baltimore. Subsequently he came to Buffalo, where he is employed as a night watchman in an industrial plant. After the expiration of more than three years, to wit, on November 29, 1926, he was apprehended under the Immigration Act of 1917. After a hearing, a warrant of deportation was issued on the ground that he is a native of an island or islands (not possessed by the United States) adjacent to the continent of Asia, situate south of the twentieth parallel north, west of the one hundred and sixtieth meridian of longitude east from Greenwich, and north of the tenth parallel of latitude south, and was likely to become a public charge at the time of his entry. The relator's contention is that the sole question submitted for decision is whether his deportation is authorized under section District Court, W. D. New York. March 18, 34 of the Immigration Act of February 5, 1927. Allens 53-Alien seaman, who fails to reship and engages in other employment, loses status as seaman under Immigration Act (Immigration Act 1917, § 34 [8 USCA § 166]). An alien seaman, who, after temporary landing in United States, fails to reship and engages in other employment, loses his status as seaman, and the protection from deportation after three years given by Immigration Act 1917, § 34 (8 USCA § 166), and where he is a inember of an excluded class is deportable at any time within five years. HAZEL, District Judge. The relator is a British subject, born on the island of Ceylon. He first came to the United States in 1920, as a seaman on a Trans-Atlantic vessel sailing between Germany and the United States. On October 13, 1923, the steamship, upon which he sailed, arrived at Philadelphia, where he claims to have been examined by an immigration officer, and subsequently the vessel proceeded to Baltimore, where the trip ended. He was permitted to go ashore for the purpose of reshipping to foreign ports, but failed to do so on account of ill health, 1917 (8 USCA § 166), providing a three-year limitation for the examination of alien seamen as to his qualification for entry, or under the Immigration Act of 1924 (43 Stat. 153), which enlarges the period of deportation for alien seamen; that, if the three-year limitation applies, the limited time having expired, the relator is not subject to deportation. But neither of those provisions apply, for the evidence shows that the relator belongs to the excluded classes; and he is no longer an alien seaman, his testimony showing that at Baltimore he failed to reship on a foreign vessel, and soon thereafter obtained other employment. See Hasenori Tanaka v. Weedin (C. C. A.) 299 F. 216. In U. S. ex rel. Gioia v. Curran (D. C.) 11 F. (2d) 904, relied on by counsel for relator, the alien was a deserting seaman, who remained in this country for more than three years after landing. He had declared his intention to become a citizen, and, before going abroad to bring back his wife, filed his affidavit of temporary absence, but on his return he and his wife were excluded, because the Italian quota was filled. He made claim of right to re-enter under section 34 and that portion of section 2(d) of the Quota Act (Comp. St. § 42892a) which deals with aliens returning from a temporary visit abroad, but his claim was refused on the ground that his original entry was illegal. The Circuit Court of Appeals for the Second Circuit, however, adopted a different view, and held that his re-entry could only be denied upon a showing that at the time of his original entry he was of the excluded classes. The Lackides Case (D. C.) 10 F.(2d) 980, does not apply. There, though the alien was a seaman and illegally in the United States, there was no question of his qualification to enter. The only question was his lack of an immigration visa under the act of 1924, and the court held that that act did not apply to persons entering before July 1, 1924, and he was permitted to remain. It is therefore ruled that, inasmuch as the relator, at the time of his arrest, had lost his status as an alien seaman, he is deportable under sections 3 and 19 of the Immigration Act of 1917 (8 USCA §§ 136, 155), which provide that any alien of the excluded classes is deportable within five years after entry. ty to claimants to appear and assert their right. The plaintiff has alleged, and the fact appears to be accordingly, that the driver of the automobile seized has heretofore been prosecuted under the National Prohibition Act (27 USCA), and received sentence upon his conviction. The case of Port Gardner Investment Company v. United States, 272 U. S. 564, 47 S. Ct. 165, 71 L. Ed. 412, decided by the Supreme Court, November 23, 1926, is cited to the point that, upon conviction had of the driver of the automobile under the terms of the National Prohibition Act, it became mandatory that the automobile be forfeited under section 26 of title 2 of that act (27 USCA § 40), and that there remains no right to forfeit for violation of customs regulations. That decision held that, where a conviction was made under the National tained under section 3450, Revised Statutes Prohibition Act, a libel could not be main(26 USCA § 1181 [Comp. St. § 6352]), relating to proceedings of forfeiture of vehicles and merchandise, used to conceal property with intent to defraud United States of revenue tax. Conceding that the same conclusion should be adopted where the attempted forfeiture is under the customs law, it does not follow that, instead of pursuing the course of action provided for the protection of a claimant in such a case, such claimant may maintain an equitable action to restrain a sale. Counsel for the plaintiff contends that action of the Customs Department and a subsequent proceeding by the district attorney to forfeit under the customs law would be entirely void. This does not follow from the facts. There can be no doubt, I think, that where a claimant does not appear to assert such right as he may have or urge the irregularity of the proceeding, a sale will give a good title to the purchaser. The only question that must be answered is: Is the proceeding, under which the sale of the automobile is threatened, being pursued without notice to the claimants and without the right of such claimants to appear and contest the ground of forfeiture or urge irregularity in the proceeding. The question necessarily must be answered in the negative. So answered, it follows that there is no ground upon which the equitable action for injunction can be maintained. No contention is made that the collector has not fully complied with those conditions Decree will therefore be entered dismisswhich the act of Congress prescribes. See ing the bill of complaint, with costs to the Barnes' Federal Code Supp. 1919-1926, § United States. An exception will be al4541, with subdivisions. These provisions lowed to complainant on the entry of this deprovide for adequate notice and opportuni- cree. *Decree modified 22 F. (2d) 518. 21 F.(2d) 697 GENERAL RY. SIGNAL CO. v. GREAT NORTHERN RY. CO. narily a mile apart. At the entrance to each block is a signal. When a train is in one District Court, D. Minnesota, Third Division. block, the signal directly behind it is set at September 19, 1927. No. 811. Patents 328-Howe patent, No. 1,551,515, for automatic train control, held not infringed. Howe patent, No. 1,551,515, for system of automatic train control held not infringed. In Equity. Suit by the General Railway Signal Company against the Great Northern Railway Company. Decree of dismissal. Paul, Paul & Moore, of Minneapolis, Minn., and Clifton V. Edwards and Lawrence K. Sager, both of New York City, and Neil D. Preston, of Rochester, N. Y., for plaintiff. Thomas Ewing and Frank C. Cole, both of New York City, Thomas Balmer, of Seattle, Wash., and Fletcher Rockwood, of St. Paul, Minn., for defendant. JOHN B. SANBORN, District Judge. The bill of complaint charges infringement of Howe patent, No. 1,551,515, and the answer sets up the defenses of lack of invention and noninfringement. The plaintiff complains of the installation of an automatic train-control system by the defendant, made by the Sprague Safety Control & Signal Corporation; that company has indemnified the railroad against loss by virtue of any patent litigation and has asIsumed the defense of this suit. While the railroad company has a real interest in the matter, the main contest is between rival manufacturers of automatic train-control devices. The subject-matter of the patent in suit relates to automatic train control, the general object of which is to require the engineer to observe wayside signals, and, in case he fails in such observations, to stop his train. Train control generally has been under investigation and development by various inventors for a great many years. Most railroad accidents are caused by the failure of the human element, rather than the failure of any of the mechanical equipment, and it has been the hope of various men to produce some automatic control system which would, so far as possible, eliminate the danger caused by carelessness, without seriously interfering with the operation of the road. The block signal system has generally been adopted by the railroads throughout the country. Under this system, the trackway is divided into block sections, which are ordi danger. When the train reaches the next block, the signal at that block is set at danger, and the signal in the block behind beblock behind that, which was previously a comes a caution signal, and the signal in the caution, goes to the clear position. There. fore, behind every train there will be, first, a danger signal at the entrance to the block in which the train is; at the entrance to the block behind that, a caution signal, and at the entrance to the block behind the caution signal, a clear signal. The purpose of these signals is obvious. An engineer, upon seeing a caution signal, knows that at the entrance to the next block he will, in all probability, meet with a danger signal, indicating that a train is in that block. If, before he reaches the danger signal, the train ahead of him has passed out of the block, he will meet with another caution signal, which will advise him of that situation and enable him at all times to keep his train under such control as to avert an accident. The principal function of a railroad is to carry traffic with all possible speed consistent with safety. The purpose of the block signal system is to keep the engineer so advised that he can proceed without stopping unless that becomes necessary. The stopping of a train means expense and delay, and unnecessary stops must be avoided. The block signal system is electrically operated upon a normally closed track circuit. The system depends upon electrical energy to give a clear signal, and any failure of it results in the danger signal. The wheels of a train, or anything else which short circuits the battery, create a danger signal. There was no difficulty in providing an inductor in the trackway to be operated in connection with a block signal system, so that, when the signal went to danger, the trackway inductor would give an impulse to an engine-carried inductor which might be used to produce an automatic stop. Such a system has been used on the New York subways. That system was not satisfactory to the railroads, because it required, in every instance, that, if an engineer or motorman passed a danger signal which failed to clear up as he reached it, he would have an automatic stop. It is not always necessary to require an engineer to bring his train to an absolute stop at a danger signal. The purpose of a signal is to advise him of the situation so that he may bring his train under such |