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For cases In Dec.Dlg. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER 1,198,246. Motor vehicle buffer, claims 9, 14, 1,501,032. Acoustic horn, claims 1 and 2, held and 18, held infringed (C. C. A. N.

valid and infringed (P. C. N. Y.) Y.) 10 F.(23) 30.

10 F.(20) 838. 1,198,860. Self-closing player-controlling switch for use in coin-receiving automatic

REISSUED music-playing device, claims 10 15,671. Improved automatic bearing bolt and and is, held valid and infringed

attachments for internal combustion (D. C. Ill.) 10 F.(20) 812.

engines, held invalid (D. C. Ill.) 10 1,198,861. Coin-receiving automatic music-play

F.(20) 536.
ing device, claims 3, 4, and 5, held
valid and infringed (D. C. Ill.) 10

PAYMENT.
F.(20) 812.

I. REQUISITES AND SUFFICIENCY. 1,204,104. Breaker assembly replacement unit

in igniting device, claims 1, 2, 3, 4, Om 12(5) (U.S.D.C.N.Y.) Shipper held entitled 6, 7, 8, 9, and 11, held valid and to recover stated amount of Italian lire for duinfringed (D. C. Ill.) 10 F.(20) plicate freight paid at exchange rate existing 823.

when decree was entered.-The Muskegon, 10 1,221,239. Slip terminal plug for electrical con- F.(20) 817.

nection, claims 1, 2, and 3, held Rate of exchange applied in computing valid and infringed (D. C. 1.) 10 freight claims against ship stated.-Id.

F.(20) 823. 1,228,171. Anticreeper devices, claims 10, 12,

PLEADING. and 41, held not infringed (C. C. See Equity, fw 263.

A. III.) 10 F.(2:1) 362. 1,235,680. Device for preparing string beans For pleadings in particular actions or proceed

for canning, claims 4 and 5, held ings, see also the various specific topics. invalid (C. C. A. Cal.) 10 F.(20)

For review of rulings relating to pleadings, see 100.

Appeal and Error. 1,243,688. Anticreeper devices, held not infring

1. FORM AND ALLEGATIONS IN GENERAL. ed (C. C. A. III.) 10 F.(20) 362. 1,256,509. Addressing machine, claims 3-6. held Cm8(6) (U.S.C.C.A.Conn.) Allegation that

valid and contributorily infringed ship was unlawfully withheld from possession (D. C. N. Y.) 10 F.(20) 602.

held mere conclusion.--The Blairmore I, 10 F. 1,256,839. Mounting and control of casement (20) 35.

windows, claims 1 and 8, held not fm 34 (4) (U.S.C.C.A.JII.) Pleadings construed infringed (C. C. A. Cal.) 10 F. most strongly against pleader.-Lyons v. Rein(20) 157.

ecke, 10 F.(20) 3. 1,266,811, Skeletonized formation of breaker 34 (4) (U.S.C.C.A.N.Y.) Pleadings are no

arm of igniting device, claims i longer construed in hostile sense, but to reach and 3, held valid and infringed (D. their true meaning.-Federal Coal Co. v. RoyC. m.) 10 F.(20) 823.

al Bank of Canada, 10 F.(20) 679. 1,270,416. Machine for wrapping cartons, claims

III. PLEA 8, 17, 18, 28, 29, and 36, beld not

ANSWER, CROSS-COM

PLAINT, AND AFFIDAVIT
infringed; claim 35 held valid and

OF DEFENSE.
infringed (D. C. Mass.) 10 F.(20)
793.

(F) Amdavit of Defense or of Merito. 1,284,523. Accelerator attachment, claims 1 and Omw 160 (U.S.D.C.Pa.). Under Pennsylvania

2, held infringed (C. C. A. N. Y.) Practice Act, affidavit of defense, raising ques10 F.(20) 44.

tions of law, admits facts well pleaded.-Beatty 1,314,799. Moisture-proof garment for infants, v. Heiner, 10 F.(20) 390.

held invalid (D. C. N. Y.) 10 F.
(20) 399.

V. DEMURRER OR EXCEPTION. 1,330,231. White gold alloy, claim 3, held in- Com 214(1) (U.S.C.C.A.III.) On demurrer, facts

valid (C. C. A. N. Y.) 10 F.(22) stated in declaration taken as pleaded.-Lyons 673.

v. Reinecke, 10 F.(2d) 3. 1,335,389. Carburetor improvements, held not in 214(5) (U.S.C.C.A.N.) Statement of law

infringed (C. C. A. IIl.) 10 F.(20) in declaration may be disregarded as mere con405.

clusion.-Lyons v. Reinecke, 10 F.(20) 3. 1,318,407. Apparatus for roasting ores, claims

17, 20, 21, 24, 25, 26, 47, 48, and VI. AMENDED AND SUPPLEMENTAL
49, held not infringed (C. C. A.

PLEADINGS AND REPLEADER.
Mont.) 10 F.(20) 98.

236(1) (U.S.C.C.A.Tex.) Federal courts 1,362,856. Rear view mirror within automobile exercise broad discretion in allowing amend

windshield, held invalid (D, C, N. ments of pleadings.-Griffin v. Thompson, 10 F. Y.) 10 F.(20) 620.

(20) 127. 1,371,553. Improvement in electric transformer Cam 236 (5) (U.S.C.C.A.Tex.) Allowance of

OR

tanks, held invalid (D. C. Pa.) 10 amendment increasing plaintiff's claim to conF.(20) 593.

form to proof is within discretion of court.1,399,570. Frame structure for attachment with Walker Grain Co. y. Southwestern Telegraph &

tractors, claims 12, 14, and 15, held Telephone Co., 10 F.(20) 272.
not infringed (C. C. A. Ohio) 10 cm 245(3) (U.S.C.C.A.Tex.) Trial amendment
F.(2d) 56.

of petition, in action on written guaranty of 1,401,942. Mirror on side wind deflector for au

value of corporate stock, held properly permittomobile, claims 1 and 2, held in- ted.-Griffin v. Thompson, 10 F.(20) 127.

valid (D. C. N. Y.) 10 F.(2:1) 619. 1,405,146. Improvement in forges, claims 1, 2, XIII. DEFECTS AND OBJECTIONS, WAIV3, 4, 7, 8, 9, 10, and 11, held valid

ER, AND AIDER BY VERDICT and infringed (D. C. N. Y.) 10 F.

OR JUDGMENT. (20) 834.

418(3) (App.D.C.) Error in sustaining de1,411.231. Vulcanization accelerator, held in

to replication is waived by pleading valid (1), C. Pa.) 10 F.(20) 598. over.-Poling v. Jeffords. 10 F.(20) 653. 1,479,497. Method of applying rubber soles and Cum 428(7) (App.D.C.) Objection to pleadings,

heels to shoes, held invalid, and if as not broad enough for particular evidence, is valid not infringed (D. C. N. Y.) waived by introduction of controverting evi10 F.(23) 843.

dence.-Trenerry v. Fravel, 10 F.(20) 1011.

murrer

POISONS.

II. MUTUAL RIGHTS, DUTIES, AND LIA

BILITIES. Cm9 (U.S.C.C.A.Tenn.) Conviction for sale of narcotics sustained.-Ray v. U. S., 10 F.(20)

(A) Execution of Agency. 359.

em 57 (App.D.C.) Agent disobeying instrucPOST OFFICE.

tions is liable, unless he proves that obedi

ence would have brought about same result.1. POST OFFICE DEPARTMENT, POST OF- Shrewsbury v. Dupont Nat. Bank, 10 F.(20) FICES, POSTMASTERS, AND

632. OTHER OFFICERS.

IJI. RIGHTS AND LIABILITIES AS TO Omw 6 (U.S.C.C.A.Tex.) Plaintiff held not enti

THIRD PERSONS. tled to recover rental value of premises used as post office, where they had defaulted under

(A) Powers of Agent. express contract by not paving street and grad. Om 136(2) (U.S.C.C.A.N.Y.) Authorized agent ing alley in accordance with proposal.—McMan- is not liable for breach of contract made on us v. U. S., 10 F.(20) 971.

behalf of principal, except where agency is

concealed or when contracting as ostensible III. OFFENSES AGAINST POSTAL LAWS. principal. – Mallory S. S. Co. v. Garfield, 10 F. m35 (U.S.C.C.A.N.Y.) Brokers held part of (20) 664. customer's scheme to defraud when participat

(C) Unauthorized and Wrongful Acts. ing with knowledge thereof (Criminal Code, $ 215 [Comp. St. § 10385]).--Silkworth v. U. Em 155(4) (U.S.C.C.A.Mo.) Party signing ne. S., 10 F.(20) 711.

gotiable instrument as agent without authority All who with criminal intent join themselves held liable thereon.-Pain v. Holtcamp, 10 F. to principal schemer are liable (Criminal Code (20) 443. $ 215 [Comp. St. § 10385]).-Id.

Omw 161(2) (U.S.C.C.A.N.Y.) Principal may reFloor broker, assisting copartnership in il- pudiate unauthorized act by one assuming to licit trading, held participant in scheme to de- act as agent. The Capitaine Faure, 10 F.(20) fraud (Criminal Code, § 215 [Comp. St. $ 950. 10385]).-Id.

(D) Ratification. President of Stock Exchange, advising par: Om 164(1) (U.S.C.C.A.N.Y.) Principal may ties whom he knew were insolvent and engaged ratify unauthorized act by one assuming to act in illegal business, to continue in business, as agent.—The Capitaine Faure, 10 F.(20) 950. held accessory to scheme to defraud (Crim-Cm 167 (U.S.C.C.A.N.Y.) Generally ratification inal Code, $8 215, 332 (Comp. St. 88 10385,

may be by parol.-The Capitaine Faure, 10 F. 10506]).-Id.

(20) 950. Intent to use mails at time of entering into Om 170(3) (U.S.C.C.A.N.Y.) Principal, desirscheme need not be shown (Criminal Code, $ ing to challenge agent's doings, must not post215 [Comp. St. § 10385)).-Id.

pone too long.-Royal Bank of Canada v. UniOn 35 (U.S.D.C.Tex.) Managing officers of

versal Export Corporation, 10 F.(20) 669. corporation could not be convicted of using C 170(3) (U.S.C.C.A.N.Y.) Laches may rest mails to defraud, if they did not participate on failuré promptly to deny agent's authortherein, regardless of their negligence.-U. S. ity arising even by implication.-Mercantile v. Foster, 10 F.(20) 577.

Bank of the Americas v. Flower Lighterage Om 48 (8) (U.S.C.C.A.N.Y.) More than

Co., 10 F.(2d) 705. misrepresentation may be charged, as long as Om171 (1) (U.S.C.C.A.N.Y.) Principal, desirthey are part of 'same scheme, and proof of ing to challenge agent's doings, must not postone will sustain indictment (Criminal Code, s pone too long, or undertake any project based 215_[Comp. St. § 10385]).-Silkworth v. U. S., on their propriety.-Royal Bank of Canada v. 10 F.(20) 711.

Universal Export Corporation, 10 F.(20) 669. Cm49 (U.S.C.C.A.T.I.). Evidence held to sus- 175(1) (U.S.C.C.A.N.Y.) As one who rattain conviction of robbing persons in charge of ifies act must accept its consequences, prinmail.---Colbeck v. U. S., 10 F.(2d) 401,

cipal liable for agent's ratified torts.-Irving m49 (U.S.C.C.A.N.Y.) Evidence held to sup- Nat. Bank v. Law, 10 F.(20) 721. port conviction of use of mails in fraudulent Om 175(3) (U.S.C.C.A.N.Y.) Principal's ratischeme (Criminal Code, $ 215 (Comp. St. $ fication of agent's unauthorized act is equiva10385]).-Silkworth v. Ú. S., 10 F.(20) 711. lent to prior authority to perform it.-The

In prosecution for using mails to defraud, Capitaine Faure, 10 F.(20) 950. proof on cross-examination that defendant had dealings with other firms engaged in like op

PRINCIPAL AND SURETY. erations as his codefendants held competent to show knowledge.--Id.

See Indemnity. ww49 (U.S.C.C.A.Tenn.) Letters held shown

II. NATURE AND EXTENT OF LIABILITY by evidence, on prosecution for illegal use, to

OF SURETY. have been received through mails.-Baker v. U. S., 10 F.(2d) 60.

On59 (App.D.C.) Contract of suretyship ww49 (U.S.C.C.A.Wis.) Conviction of using strictly construed, and not extended by immails to defraud warranted by evidence.-Neu plication or presumption.-Commercial Nat. v. U. S., 10 F.(20)_146.

Bank of Washington v. London & Lancashire 51 (U.S.C.C.A.Tenn.) Sentence on several Indemnity Co. of America, 10 F.(20) 641. counts for use of mails to defraud held not ex

III. DISCHARGE OF SURETY. cessive punishment.--Baker v. U. S., 10 F. (20) 60.

Cum 99 (App.D.C.) Where amount of bank's

advances exceeded amount authorized by surePRACTICE.

ty's contract, surety could not be made liable For practice in particular actions and proceed- by bank's offer to accept less.-Commercial ings, see the various specific topics.

Nat. Bank of Washington v. London & Lancashire Indemnity Co. of America, 10 F.(20)

641. PRESCRIPTION. See Limitation of Actions.

IV. REMEDIES OF CREDITORS.

@w 155 (App.D.C.) Declaration in action PRINCIPAL AND AGENT.

against surety on contract guaranteeing ad

vances to motor company held demurrable. See Attorney and Client; Factors.

Commercial Nat. Bank of Washington v. Lonjuries. Noland v. U. S., 10 F.(20) 768.

one

A.11.)

For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see samo topic and KEY-NUMBER
don_& Lancashire Indemnity Co. of America, determining rights to land patent.-Perry v.
10 F.(20) 641.

Work, 10 F.(20) 887.
PRISONS.

(J) Patents.
On 13 (U.S.C.C.A.Conn.) Attorney General,
under statutes and practice of comity, may

Om 114(3) (App.D.C.) Scope of decision in acchange place of imprisonment of federal pris- Work v. Read, 10 F.(20) 637.

tion to determine rights under patent stated.oner to state prison (Comp. St. $ 10547).Chapman v. Scott, 10 F.(20) 690.

(K) Remedies in Cases of Fraud, Mistake, Om i3 (U.S.D.C.Conn.) Attorney General may

or Trust. transfer convict from federal to state prison, without notice to or consent of convict.-Chap- issuance of land patent to contestant, may sue

5128 (App.D.C.) Homestead claimant, after man v. Scott, 10 F.(2d) 156. District Court may not question administra

in equity to have latter's title impressed with tive act of Attorney General in transferring

trust.-Perry v. Work, 10 F.(20) 887. federal prisoner.-Id.

III. DISPOSAL OF LANDS OF THE STATES. Prisoner could not object because federal government surrendered custody.-Id.

Em 173(14) (U.S.C.C.A.Tex.) County held not That state prison warden changed federal entitled to question validity of sale of school prisoner's number, when surrendered to state

lands.-Madison County, Tex., v. Wilson, 10 authorities for trial, held not to change legal F.(20) 149. status of prisoner.-Id. em 15 (U.S.D.C.Conn.) Order of President held

PUBLIC SERVICE COMMISSIONS. "commutation,” and not "pardon.”—Chapman v. mo7 (U.S.D.C.Mo.) Fair present value of Scott, 10 F.(20) 156.

property is value used for rate-making purCommutation of federal prisoner's sentence, poses.-Springfield Gas & Electric Co. v. Dubto enable sentence imposed by state court to be lic Service Commission of Missouri, 10 F.(20) carried out, held not violative of prisoner's con- 252. stitutional rights.-Id.

On7 (U.S.D.C.N.J.) Present fair value of Prisoner could not object to commutation of property of public utility corporation given efhis sentence to federal prison to enable state fect in fixing rate base.—Middlesex Water Co. sentence to be carried out.-Id.

V. Board of Public Utility Commissioners of PROCESS.

New Jersey, 10 F.(20) 519.

Rates giving less than 6 per cent. return held II. SERVICE.

confiscatory.-Id.

em? (U.S.D.C.N.Y.) Ascertainment of value (B) Substituted Service.

of public utility's property relative to rates is 78 (App.D.C.) House long abandoned by matter of reasonable judgment.-New York & defendant held not "last and usual place of Richmond Gas Co. v. Prendergast, 10 F.(20) abode," within meaning of statute.-Trask v. 167. Karrick, 10 F.(20) 995.

"Going concern value” is property, for purSummons left at defendant's abandoned res

pose of rate fixing.-Id. idence held not to give jurisdiction under Massa

Undistributed structural costs and working chusetts statute.-Id.

capital should be allowed in determining value III. DEFECTS. OBJECTIONS, AND

for rate-making purposes.-Id.

18 (U.S.D.C.M.) Public Service CommisAMENDMENT.

sion should make finding supporting order esOm 162 (U.S.C.C.A.Tex.) Federal courts exer

tablishing lower rates.-Springfield Gas & Eleccise broad discretion in allowing amendments

tric Co. v. Public Service Commission of Misof process.-Griffin v. Thompson, 10 F.(20) 127. souri, 10 F.(20) 252. PROHIBITION.

PUBLIC SERVICE CORPORATIONS. See Intoxicating Liquors.

See Carriers; Electricity; Gas; Railroads;

Street Railroads.
PROMISSORY NOTES.
See Bills and Notes.

RAILROADS.
PROSTITUTION.

See Street Railroads.
Omw 4 (U.S.C.C.A.Or.) In White Slave Act

X. OPERATION. prosecution, evidence as to defendant being (C) Companies and Persons Liable for Intwice married and divorced held not error.

266 (U.S.D.C.Minn.) Employee failing to

warn liable to person injured, and can be joined PUBLIC IMPROVEMENTS.

as defendant.--Burrichter v. Chicago, M. & St. See Municipal Corporations, ww278–348. P. Ry. Co., 10 F.(20) 165. PUBLIC LANDS.

(F) Accidents at Crossings. II. SURVEY AND DISPOSAL OF LANDS OF

314 (U.S.C.C.A.Ohio) Operatives, in exerUNITED STATES.

cising ordinary care, required to consider ob(B) Entries, Sales, and Possessory Rights.

structions off right of way.-Baltimore & O. R.

Co. v. Goodman, 10 F.(20) 58. Cu 29 (App.D.C.) Relinquishment of forest 316(2) (U.S.C.C.A.Ohio) Negligence cannot lands under Lieu Land Act, and acceptance, be based alone on high speed at unobstructed creates contract.-Work v. Read, 10 F.(20) country crossing.–Baltimore & O. R. Co. v. 637.

Reeves, 10 F.(2d) 329. 31 (App.D.C.) Protestant against forest

m327(8) (U.S.C.C.A.Ohio) Reasonable lieu entry held without possessory rights. required of truck driver.- Baltimore & 0. R. Work V. Read, 10 F.(20) 637.

Co. y. Goodman, 10 F.(20) 58. First entryman making forest lieu selection

ww333(1) (U.S.C.C.A.III.) Automobile driver acquires prior right.-Id.

held guilty of contributory negligence in fail(1) Proceedings in Land Office.

ing to wait.-Pere Marquette Ry. Co. v. Ander

son, 10 F.(20) 357. Cm 108 (App.D.C.) Injunction will not lie to ww337(2) (U.S.C.C.A.Ohio) Failure to keep review errors of Secretary of the Interior in crossing approaches in repair held not basis of

care

recovery for collision with automobile.-Balti

RECORDS. more & O. R. Co. v. Reeves, 10 F.(20) 329.

See Criminal Law, 1086. C 346(5), (U.S.C.C.A.Ohio) Presumption decedent looked and listened for train rebuttable. 7 (U.S.C.C.A.N.Y.) Paper not "filed" unti - Baltimore & O. R. Co. v. Goodman, 10 F.(20) deposited with clerk of court.-In re Gubelman, 58.

10 F.(20) 926. CM350 (7) (U.S.C.C.A.Ohio) Submission of theory of duty to give signals, in addition to statu

REFORMATION OF INSTRUMENTS. tory signals, held error.–Baltimore & O. R. Co. I. RIGHT OF ACTION AND DEFENSES. v. Reeves, 10 F.(20) 329. 350 (11) (U.S.C.C.A.Ohio) Submission of torily proved equity will reform contract to

Om 17(1) (App.D.C.) If mistake is satisfacquestion of negligence based on speed held error.- Baltimore & O. 'R. Co. v. Reeves, 10 F. 10 F.(20) 997.

conform to parties' intent.-Sanders v. Monroe, (20) 329. 350 (22) (U.S.C.C.A.Ohio) Truck driver's

C25 (Ápp.D.C.) Negligence in failing to read negligence at obscured crossing held for jury: legal duty to justify withholding of equitable

instrument must amount to failure of positive --Baltimore & 0. R. Co. v. Goodman, 10 F.(20) relief.-Sanders v. Monroe, 10 F.(20) 997. 58. 350 (26) (U.S.C.C.A.Ohio) Automobile driv- debt covered by trust deed held not such neg

Mortgagor's failure to read agreement as to er's contributory negligence held for jury: ligence as to preclude relief.-Id. Baltimore & 0. R. Čo. v. Reeves, 10 F.(20)

Failure to read instrument prepared by oth329.

er party, because of confidence in latter, fur350 (32) (U.S.C.C.A.Ohio) Whether fail

nishes very narrow ground for denying reformaure to erect statutory signs at crossing con

tion.-Id. tributed to injury held for jury.-Baltimore & 0. R. Co. v. Reeves, 10 F.(20) 329.

II. PROCEEDINGS AND RELIEF. C350 (33) (U.S.C.C.A.Ohio). Evidence held m45(8) (App.D.C.) Evidence held to show not to warrant submission of last clear chance

that trust deed was not intended to cover note, doctrine.-Baltimore & O. R. Co. v. Reeves, 10

thereafter acquired by mortgagee, as provided F.(20) 329.

in contemporaneous written agreement.-San(G) Injuries to Persons on or near Tracks.' ders v. Monroe, 10 F.(20) 997. 358 (2) (U.S.C.C.A.Pa.) Care required as to instrument, which he subsequently read with

Plaintiff's testimony that he could not read children playing in yards with company's acquiescence.-Erie R. Co. v. Kazanecki, 10 of difficuity, held not to preclude reliet.-id. (2d) 337.

RELEASE. 398(1) (U.S.C.C.A.Pa.) Permissive use of yard as playground may be proved by witness

I. REQUISITES AND VALIDITY. observing children playing.-Erie R. Co. v. Cramo 7 (U.S.C.C.A.Or.) Agreement not to sue one Kazanecki, 10 F.(20) 337.

joint tort-feasor held not a “release," but a Finding of negligence as to child permissibly "covenant not to sue."-Pacific States Lumber on track sustained.-Id.

Co. v. Bargar, 10 F.(20) 335. m 400(2), (U.S.C.C.A.Pa.) Permissive use of an 24 (2) (U.S.C.C.A.Cal.) Release could not yard by children as playground held for jury. be avoided without restoring consideration if -- Erie R. Co. v. Kazanecki, 10 F.(20) 337. signed with full knowledge of its terms. but

might be disregarded if employee was deceived REAL ACTIONS.

as to its contents.-Miles v. Lavender, 10 F. See Partition.

(20) 450. RECEIVERS.

II. CONSTRUCTION AND OPERATION. V. ALLOWANCE

PAYMENT OF

27 (U.S.C.C.A.N.Y.) Release of dock comCLAIMS.

pany in libel by carrier for shortage in shipC 150 (U.S.C.C.A.Ohio) Consideration for ment of cocoa beans, when carrier's lighter notes to bank, given by corporation having was damaged by dock company's foul berth, common management, held shown by evidence held conclusive as to owner's similar claim for showing credit was given for each note dis- damages to shipment.--Mercantile Bank of counted.-Wentz v. Scott, 10 F.(20) 426. the Americas v. Flower Lighterage Co., 10 F. Om 158(1) (U.S.C.C.A.Tex.) When equitable (20) 705. right of priority attaches to claim against rail- 29(1) (U.S.C.C.A.Or.) Release of one joint road stated.--International-Great Northern R. tort-feasor will release other.-Pacific States Co. v. Binford, 10 F.(20) 496, followed in Same Lumber Co. v. Bargar, 10 F.(20) 335. v. Edgeley, 10 F.(20) 501.

C37 (U.S.C.C.A.Or.) Covenant not to ww163 (U.S.C.C.A.N.Y.) No interest on claim does not release another tort-feasor.-Pacific for eviction of tenant after receiver appointed States Lumber Co. v. Bargar, 10 F.(20) 335. for insolvent landlord.-American Brake Shoe & Foundry Co. v. New York Rys. Co., 10 F.(2d)

REMOVAL OF CAUSES. 28.

I. POWER TO REMOVE AND RIGHT OF VI. ACTIONS.

REMOVAL IN GENERAL. w 165 (U.S.C.C.A.N.Y.) Receiver of lessor, not party to creditors' bill, must bring plenary not be enlarged beyond what is definite and free

mw2 (U.S.D.C.Mass.) Removal statute should suit to recover funds of which he was not in possession, even though it be ancillary:-Ameri: 10 F.(20) 368.

from ambiguity.-McCaffrey v. Wilson & Co., can Brake Shoe & Foundry Co. v. New York

On 3 (U.S.D.C.S.C.) That federal court first Rys. Co., 10 F.(20) 920. Lessors of street railway, intervening in re

acquires jurisdiction of res does not give right ceivership proceeding against lessee, are par.

of removal.-Mace v. Mayfield, 10 F.(20) 231. ties for any controversy which may arise be

II. ORIGIN, NATURE, AND SUBJECT OF tween them and receiver.-Id.

CONTROVERSY.

to

19(7) (U.S.D.C.S.C) Action establish RECEIVING STOLEN GOODS.

preferred claim against insolvent national bank Cwm8(3) (U.S.C.C.A.Porto Rico) Evidence held held removable to federal court, despite amount to warrant conviction for possessing property involved. -Studebaker Corporation of America known to have been stolen from mails.-Gar- v. First Nat. Bank, 10 F.(20) 590. cia v. U. S., 10 F.(20) 355.

Presence of banks as parties defendant in

AND

sue

For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER action against receiver of one of them, a na- Om83 (U.S.C.C.A.N.Y.) Under contract for tional bank, held not to affect jurisdiction of sale of sugar by “steamer or steamers," and right of removal.-Id.

"names of such steamers to be declared lat

er,” seller can substitute another steamer for 111. CITIZENSHIP OR ALIENAGE OF

one provisionally declared, where substituted PARTIES.

carried sugar, which was shipped within time (A) Diverse Citizenship or Alienage in specified.-Matthew Smith Tea, Coffee & GroGeneral.

cery Co. v. Lamborn, 10 F.(20) 697. 26 (U.S.D.C.S.C.) When removal is authorized from state to federal court stated. III. MODIFICATION, OR

RESCISSION OF

CONTRACT. Mace v. Mayfield, 10 F.(20) 231. 29 (U.S.D.C.Mass.) Where controversy is

(A) By Agreement of Partier. not separable, and resident and nonresident de

em 89 (U.S.C.C.A.Tex.) Seller's agreement, on fendants are joined, action is not removable. buyer's nonacceptance of corn shipment, held McCaffrey v. Wilson & Co., 10 F.(20) 368.

not a relinquishment of any rights against ww44 (U.S.D.C.Mass.) Defendant, sued in own buyer.-Brunswig Grain Co. v. Anchor Grain state, may not remove, but defendant, sued

Co., 10 F.(20) 304. alone in another state, may remove.—McCaffrey v. Wilson & Co., 10 F.(20) 368.

(C) Rescission by Buyer.

120 (U.S.D.C.Pa.) Failure of number of (B) Separable Controversies.

units to conform to sample did not warrant reem53 (U.S.D.C.S.C.) Action to foreclose mort

scission.-Dodge v. F. A. D. Andrea, Inc., 10 gage to which each defendant makes separate F.(20) 387. defense held not removable; "controversy."Mace v. Mayfield, 10 F.(20) 231.

IV. PERFORMANCE OF CONTRACT. VI. PROCEEDINGS TO PROCURE AND EF. (C) Delivery and Acceptance of Goods. FECT OF REMOVAL.

en 150(3) (U.S.C.C.A.Mass.) Seller's tender Ow82 (U.S.D.C.Mass.) All defendants must of delivery from warehouse the same day buyer unite in petition for removal.-McCaffrey v.

properly refused delivery from vessel held Wilson & Co., 10 F.(20) 368.

not too late.-C. C. Mengel & Bro. Co. v. Handy 92 (U.S.D.C.S.C.) Court warranted in strik, Chocolate Co., 10 F.(20) 293. ing illegible portions of transcript from file. Ons 152 (U.S.C.C.A.Tex.) That seller was cardiace v. Mayfield, 10 F.(20) 231.

rying corn at an agreed charge held not to ex

cuse buyer from giving shipping instructions REVENUE.

within reasonable time.-Brunswig Grain Co. v. See Taxation.

Anchor Grain Co., 10 F.(20) 304.
REVIEW.

Want of shipping instructions held to war

rant cancellation of contract for sale of corn. See Appeal and Error.

-Id.

176(3) (U.S.C.C.A.Mass.) Buyer's refusal RISKS.

of tender on specified ground held not to preSee Master and Servant, 204.

clude defenses on other grounds; "waiver;"

“estoppel."-C. C. Mengel & Bro. Co, v. Handy RULES OF COURT,

Chocolate Co., 10 F.(2d) 293. See Court Rules Cited.

Om 176(3) (U.S.C.C.A.Qkl.) Buyer could not

change ground of refusal after litigation begun. SALES.

-Griffin Grocery Co. v. Richardson, 10 F.(20)

467. See Vendor and Purchaser,

C181 (2) (U.S.C.C.A.Cal.) Buyer required to

testify whether he made complaint when he asI. REQUISITES AND VALIDITY OF CON

certained that coffee was not shipped on first TRACT.

available vessel.-Hecht v. Alfaro, 10 F.(20) Cw52(2) (U.S.C.C.A.Neb.) Fact that parties 464. would not be apt to make contract contended Evidence that buyer never advised seller that should be taken in consideration.-W. J. Foye he would not accept coffee because not shipped Lumber Co. v. Pennsylvania R. Co., 10 F.(20) on time admissible.--Id. 437.

Testimony that shipping agency had monopoOm53(1) (U.S.C.C.A.Neb.) Evidence held in- ly at shipping port admissible in action for sufficient to make it a jury question whether damages because of delay.-Id. there was agreement regarding guaranty as to Evidence that shipping agency had exclusive weight of ties, with understanding for refunds charge of carrying out instruction of shippers for underweight.-W. J. Foye Lumber Co. v. according to facilities of port, was admissible. Pennsylvania R, Co., 10 F.(20) 437.

-Id.

ww181(5) (U.S.C.C.A.Okl.) Admitting testiII. CONSTRUCTION OF CONTRACT.

mony that seed furnished was good, average, C54 (U.S.C.C.A.N.Y.) Sales contract is con- country run sorghum seed not erroneous.-Grifstrued according to parties' intention. - Mat- fin Grocery Co. v. Richardson, 10 F.(20) 467. thew Smith Tea, Coffee & Grocery Co. v. Admitting evidence that seed was the kind Lamborn, 10 F.(20) 697.

used and planted in state from which sbipped Om60 (U.S.C.C.A.Okl.) In construing con- not prejudicial.-Id. tract, court had right to place itself in situa- Permitting seller to testify that seed accepttion of parties at time they entered into con- ed and seed rejected was of same character and tract.-Griffin Grocery Co. v. Richardson, 10 F. quality not error.-Id. (20) 467.

Om 181 (9) (U.S.C.C.A.Cal.) Competent to Cu81 (5) (U.S.C.C.A.Tex.) Provision in con- prove that seller gave shipping agency instructract for future delivery of grain held to con- tions to ship coffee on first trip of ship sestitute sufficient shipping instructions.-Bruns- lected by buyer.-Hecht v. Alfaro, 10 F.(20) wig Grain Co. v. Anchor Grain Co., 10 F.(2d) 461. 304.

Admission of evidence that yellow fever epCm83 (U.S.C.C.A.Mass.) Ineffectual tender idemic delayed shipments was not reversible from vessel held not election, precluding subse- error.-Id. quent tender from warehouse.-C. C. Mengel & Em 181(9) (U.S.C.C.A.Mass.) Evidence that anBro. Co. v. Handy Chocolate Co., 10 F.(20) other vessel arrived 3 weeks later than vessel 293.

carrying seller's goods held inadmissible, as im

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