PRINCIPAL AND SURETY.

IV. REMEDIES OF CREDITORS.

152 (U.S.C.C.A.Tex.) Suit could be maintained against surety on bond without joining principal, where principal was not party to bond and was nonresident (Rev. St. Tex. 1925, art. 1987).-Southern Surety Co. v. Austin, 22 F. (2d) 881.

PRISONS.

13 (U.S.D.C.Ga.) Release from state penitentiary under state parole of prisoner serving concurrent federal and state sentences held not to authorize his transfer to federal penitentiary (18 USCA §§ 696, 698, 792).-Harrison v. Snook, 22 F. (2d) 169.

PRIZE FIGHTING.

(U.S.D.C.Ga.) Transportation by mail or common carrier of fight films was not necessary to offense of sending them (18 USCA §§ 405, 406).-Atlanta Enterprises v. Crawford, 22 F. (2d) 834.

PROCESS.

II. SERVICE.

(B) Substituted Service.

71 (U.S.D.C.N.Y.) When authorized by statute, court has power to subject defendant's person to its jurisdiction by substituted service strictly complying with statute.-U. S. v. Waverly Club, 22 F. (2d) 422.

PROSTITUTION.

charging 3 (U.S.C.C.A.Iowa) Indictment transportation in interstate commerce of woman for prostitution held not defective in failing to state mode of travel (White Slave Traffic Act. § 2 [18 USCA § 398]).-Blain v. U. S., 22 F. (2d) 393.

Indictment for transporting woman in interstate commerce for prostitution and debauchery need not state her age (White Slave Traffic Act, § 2 [18 USCA § 398]).-Id.

Indictment charging transportation of woman in interstate commerce for debauchery held sufficiently to define debauchery (White Slave Traffic Act, § 2 [18 USCA § 398]).-Id.

Indictment charging transportation of woman in interstate commerce for debauchery and enticing and compelling her to become debauched held not duplicitous (White Slave Traffic Act, 2 [18 USCA § 398]).—Id.

That parties were common-law husband and wife held matter of defense, and did not invalidate indictment charging transportation for prostitution (White Slave Traffic Act, § 2 [18 USCA § 398]).—Id.

PUBLIC LANDS.

II. SURVEY AND DISPOSAL OF LANDS OF UNITED STATES.

(B) Entries, Sales, and Possessory Rights. 35(1) (U.S.D.C.Cal.) Adverse homestead entry of mining claim held invalid.-Mesmer v. Geith, 22 F. (2d) 690.

(H) Grants in Aid of Railroads. 85 (U.S.D.C.Minn.) Reduced fare, to which government is entitled from Northern Pacific Railway, held based on percentage of aided lines in route actually used.-Northern Pac. Ry. Co. v. U. S., 22 F. (2d) 858.

(1) Proceedings in Land Office. 103(4) (U.S.C.C.A.Wyo.) .While title to public lands remains in United States, courts will not interfere with its administration by Land Department.-Sullivan v. Mammoth Oil Co., 22 F. (2d) 663.

United States is necessary party to suit for patent or lease of public lands.-Id.

PUBLIC SERVICE COMMISSIONS.

6 (U.S.C.C.A.Tex.) Railroad Commission of Texas held legislative, and not constitutional, creation on which Legislature may confer powers other than regulation of railroads and rates (Const. Tex. art. 10, § 2).-Oxford Oil Co. v. Atlantic Oil Producing Co., 22 F. (2d) 597, affirming judgment (D. C.) 16 F. (2d) 639.

RAILROADS.

I. CONTROL AND REGULATION IN
GENERAL.

52 (40) (U.S.C.C.A.N.Y.) Claim for demurrage paid Director General is one against United States.-Knickerbocker Fuel Co. Mellon, 22 F. (2d) 500, affirming judgment (D. C.) 19 F. (2d) 128.

V.

of

52 (44) (U.S.C.C.A.N.Y.) Limitation action against agent of President held not "statute of limitations," and is not tolled by mistake (Transportation Act 1920, § 206 [a], being 49 USCA § 74 [a]).-Knickerbocker Fuel Co. v. Mellon, 22 F. (2d) 500, affirming judgment (D. C.) 18 F. (2d) 128.

51/2(51) (U.S.D.C.Minn.) Court is without jurisdiction to enjoin action on certificate of Interstate Commerce Commission stating amount due railroad from United States under guaranty (Transportation Act 1920, § 209 [g], being 49 USCA § 77 [g]).-Great Northern Ry. Co. v. U. S., 22 F. (2d) 865.

VII. SALES, LEASES. TRAFFIC CON-
TRACTS, AND CONSOLIDATION.

142 (U.S.C.C.A.Ohio) Interstate Commerce Commission, in hearing on application for consolidation, considers rights of minority stockholders (Interstate Commerce Act, § 5, par. 2, as amended by Transportation Act 1920, § 407 [49 USCA § 5]).-Cleveland, C., C. & St. L. Ry. Co. v. Jackson, 22 F. (2d) 509.

X. OPERATION.

(B) Statutory, Municipal, and Official Regulations.

229 (3) (U.S.C.C.A.Ind.) Movement of engine and 28 cars from yard onto main track and into another yard was "train movement," within Safety Appliance Act, § 2 (45 USCA § 9).Chicago & E. R. Co. v. U. S., 22 F. (2d) 729.

(D) Injuries to Licensees or Trespassers in General.

275(1) (U.S.C.C.A.W.Va.) Railroad furand for defects discoverable by reasonable care nishing cars is liable only for ordinary care, in inspection.-Chesapeake & O. Ry. Co. v. Cochran, 22 F. (2d) 22.

282 (9) (U.S.C.C.A.W.Va.) Evidence. as to defective brake on car causing injury to consignee's employee held for jury.-Chesapeake & O. Ry. Co. v. Cochran, 22 F. (2d) 22.

Evidence as to contributory negligence of consignee's employee, killed in attempt to move car, held for jury.-Id.

Assumption of risk by consignee's employee, attempting to operate brake on freight car, held for jury. Id.

~282(14) (U.S.C.C.A.W.Va.) Instruction held erroneous, as holding railroad to absolute duty of furnishing proper car to consignee.-Chesapeake & O. Ry. Co. v. Cochran, 22 F. (2d) 22.

(F) Accidents at Crossings.

312(15) (U.S.C.C.A.Ohio) Fog held insufficient to warrant finding of duty to repeat crossing signal given as required by statute (Gen. Code Ohio, § 8853).-Pennsylvania R. Co. v. Stegaman, 22 F.(2d) 69.

77(4) (U.S.C.C.A.Ohio) Intervener in receivership of solvent company held entitled to goods stored for it when loans were made to company. Sturzinger v. Hart, 22 F. (2d) 801.

V. ALLOWANCE AND PAYMENT OF
CLAIMS.

152 (U.S.C.C.A.N.Y.) Notes payable to United States for price of vessel requisitioned by Shipping Board during construction held entitled to priority on appointment of receiver for purchaser (Shipping Act 1916 [46 USCA § 801 et seq.]: Urgency Deficiency Act, § 1, cl. "e" [31 USCA § 191]).-Whan v. Green Star S. S. Corporation, 22 F. (2d) 483.

REFERENCE.

I. NATURE, GROUNDS, AND ORDER of REFERENCE.

8(3) (U.S.C.C.A.W.Va.) Trial court properly referred case involving examination of bank accounts.-Veneri v. Draper, 22 F.(2d) 33.

29 (U.S.C.C.A.W.Va.) Order of reference in case involving examination of bank accounts properly directed auditor to report findings as to indebtedness.-Veneri v. Draper, 22 F. (2d) 33.

III. REPORT AND FINDINGS.

99 (6) (U.S.C.C.A.W.Va.) Auditor's report was properly admitted in evidence, with charge that it was prima facie correct.-Veneri v. Draper, 22 F.(2d) 33.

RELEASE.

are

I. REQUISITES AND VALIDITY. 15 (U.S.D.C.Md.) Seamen's releases never conclusive, except when knowingly and understandingly made; doubt being resolved in favor of seamen.-The Henry S. Grove, 22 F. (2d) 444.

Courts should be reluctant to sustain release of liability of which releasing party was ignorant, or which was not in contemplation of parties.-Id.

15.(U.S.D.C.Md.) Seamen's releases will be scrutinized with particular care.-The S. W. Somers, 22 F. (2d) 448.

17(2) (U.S.D.C.Md.) Successive receipts and releases given by seamen held given under circumstances tending to deceive, and not binding. The Henry S. Grove, 22 F. (2d) 444.

REMOVAL OF CAUSES.

III. CITIZENSHIP OR ALIENAGE OF PARTIES.

(A) Diverse Citizenship or Alienage în General.

26 (U.S.D.C.N.D.) Defendant, living in state for several years, held not entitled to removal for diversity of citizenship.-Davidson v. Montana-Dakota Power Co., 22 F. (2d) 688.

30 (U.S.D.C.N.D.) Municipality held not to have interest preventing removal for diversity of citizenship of other defendants.-Davidson v. Montana-Dakota Power Co., 22 F. (2d) 688.

(B) Separable Controversies. 48 (U.S.D.C.Idaho) Suit cannot be removed to federal court as separable controversy. unless complaint sets forth several causes of action, one of which is wholly between citizens of different states.-City of St. Anthony v. Mason, 22 F. (2d) 306.

49 (2) (U.S.D.C.Idaho) Action by city against city treasurer and surety company on joint and several bond held not removable as separable controversy.-City of St. Anthony v. Mason, 22 F. (2d) 306.

49 (3) (U.S.D.C.Okl.) That petition fails to state cause of action against nonresident defendant does not give him right of removal on ground of separable controversy.-Adams v. Tolerton, 22 F. (2d) 863.

When separate acts of negligence combine to cause injury, each is liable for the entire result, and cause is not removable on ground of separable controversy.-Id.

54 (U.S.C.C.A.Wyo.) Action for injuries to ing foreign corporation's plant held removable domestic corporation's employee while repairto federal court as separable controversy.-Epperson v. Midwest Refining Co., 22 F. (2d) 622. by corporate defendant, on ground that separa54 (U.S.D.C.N.D.) Cause held removable ble controversy exists between it and plaintiff.Davidson v. Montana-Dakota Power Co., 22 F. (2d) 688.

58 (U.S.D.C.N.D.) Entire suit is removable, where controversy is between citizens of different states, which can be fully determined as between them.-Davidson v. Montana-Dakota Power Co., 22 F. (2d) 688.

61 (U.S.C.C.A.Wyo.) Petition for injuries to domestic corporation's employee repairing foreign corporation's plant held to charge negligence of foreign corporation only, and removable.-Epperson v. Midwest Refining Co., 22 F. (2d) 622.

V. AMOUNT OR VALUE IN CONTROVERSY.

75 (U.S.D.C.Tex.) Allegation that property on which it is sought to foreclose lien for taxes was assessed at more than $3,000 does not make cause removable, where amount sought to be recovered is less.-Wichita County Improvement Dist. v. Western Union Telegraph Co., 22 F. (2d) 997.

VIII. PROCEEDINGS IN CAUSE AFTER REMOVAL.

granting preliminary injunction after removal 114 (U.S.C.C.A.Cal.) Federal court order should be deemed denial of motion to vacate similar state court order (Judicial Code, § 36 Irr. Co., 22 ̊F.(2d) 374. [28 USCA § 79]).-Trautwein v. Moreno Mut.

117 (U.S.D.C.Tex.) Cause will be remanded to state court on failure of defendants to

plead within 30 days after filing of transcript (Judicial Code, § 29 [28 USCA § 72]).-Egger v. Julian Petroleum Corporation, 22 F. (2d) 714.

RULES OF COURT.

See Court Rules Cited or Construed.

SALES.

I. REQUISITES AND VALIDITY OF CONTRACT.

2 (U.S.C.C.A.Va.) Virginia statute requiring conditions in printed contract of sale to be in prescribed size of type held not to apply to contract executed in another state (Michie's Code Va. 1924, § 5562a).-Hogue-Kellogg Co. v. G. L. Webster Canning Co., 22 F. (2d) 384.

52(7) (U.S.C.C.A.Mass.) Evidence in action for breach of contract held insufficient to support charge of seller's fraud in nature of de

1067

IV. PERFORMANCE OF CONTRACT. (C) Delivery and Acceptance of Goods. 162 (U.S.D.C.N.Y.) Under contract, buyer had to pay for goods on board ship after arrival, although portion was destroyed.-Johnson & Higgins v. Charles F. Garrigues Co., 22 F. (2d) 454.

177 (U.S.C.C.A.Va.) Buyer could not avoid contract because of depreciation of market value of property.-Virginia Shipbuilding Corporation v. U. S., 22 F. (2d) 38, affirming decree (D. C.) Same v. U. S. Shipping Board Emergency Fleet Corporation, 292 F. 440.

V. OPERATION AND EFFECT. (A) Transfer of Title as Between Parties. 201(5) (U.S.D.C.N.Y.) Contract providing for cash against shipping documents on arrival of goods was not "c. i. f. contract."-Johnson & Higgins v. Charles F. Garrigues Co., 22 F. (2d) 454.

202(5) (U.S.D.C.N.Y.) Where goods were to be delivered ex vessel on arrival duty paid, payment on delivery, until events took place, title remained in shipper.-Johnson & Higgins v. Charles F. Garrigues Co., 22 F.(2d) 454.

VI. WARRANTIES.

SALVAGE.

SEAMEN.

27(1) (U.S.D.C.Md.) Seamen on vessel in hands of conditional vendee are entitled to lien for wages, notwithstanding clause denying vendee authority to create liens (Maritime Lien Act 1910, as amended by Merchant Marine Act 1920, § 30, subsecs. P-T [46 USCA §§ 971975]). The S. W. Somers. 22 F. (2d) 448.

27(9) (U.S.D.C.Md.) Whether one is entitled to preferred maritime lien for wages of crew is determined from nature of services performed (Ship Mortgage Act, § 30, subsec. M [46 USCA § 953]).-The Herdis, 22 F. (2d) 304.

Former masters, acting as caretakers of vessels moored in navigable waters, performing maritime services, were entitled to preferred maritime liens for wages under Ship Mortgage Act (Ship Mortgage Act, § 30, subsec. M [46 USCA § 953]).—Id.

Any ambiguity in statute relating to preferred resolved in favor of maritime liens must be seaman (Ship Mortgage Act, § 30, subsec. M [46 USCA § 953]).—Id.

27(11) (U.S.D.C.Md.) Seaman's release of lien on receipt of part payment of wages due held not binding, after vendee's check for balance of wages was not paid.-The S. W. Somers, 22 F. (2d) 448.

avoid liability for injury to seaman on ground 29(4) (U.S.C.C.A.N.Y.) Shipowner cannot that seaman knew of defect in appliance.Grant v. U. S. Shipping Board Emergency Fleet Corporation, 22 F. (2d) 488.

29(5) (U.S.C.C.A.N.Y.)

Whether chain

rail, giving way when seaman seized it as wave struck him, was securely fastened, held for jury.-Grant v. U. S. Shipping Board Emergency Fleet Corporation, 22 F. (2d) 488.

Whether stanchions holding chain, which gave way when seaman seized it as wave struck him, were of sufficient strength to withhold ordinary storm, held for jury.-Id.

SEARCHES AND SEIZURES.

(U.S.D.C.Fla.) Prize fight films, not sent or received through mails or interstate carrier, held not subject to seizure (18 USCA §§ 405-407).-Consolidated Amusements v. Gober, 22 F. (2d) 296.

3(4) (U.S.D.C.Ga.) Evidence showed that probable cause existed for issuance of warrant for seizure of fight films, under statute providing for warrant where property is used as means of committing felony (18 USCA §§ 405, 612, subd. 2).-Atlanta Enterprises v. Crawford, 22 F. (2d) 834.

Affidavits for search warrants must be true at time they are finally sworn to.-Id.

Affidavits for search warrant, stating that fight films were at theater, when affiants knew that they were not, warrant must be treated as though only daytime warrant (18 USCA § 620). -Id.

3(9) (U.S.D.C.Ga.) "Daytime," in statute relating to search warrants, does not begin at sunrise or end at sunset, but includes dawn and twilight (18 USCA § 620).-Atlanta Enterprises v. Crawford, 22 F. (2d) 834.

Search warrant, executed at about 5:30 p. m. in October, would not be annulled on doubt as to whether it was still daytime (18 USCA § 620).-Id.

3(10) (U.S.D.C.Ga.) District Court could determine whether seizure of fight films by its marshal under warrant issued by its commissioner was legal (18 USCA § 625).-Atlanta Enterprises v. Crawford, 22 F. (2d) 834.

belong to owner.-U. S. v. Sterling, 22 F. (2d) 323.

Seller of vessel, who made no attempt to put purchaser in default, cannot claim freight moneys earned under trustee's management against assignee of purchaser.-Id.

Seller's lien for advancements and disbursements necessary in performance of charter parties held superior to claim of assignee of purchaser of vessel as claim against freight moneys.-Id.

Rights of shipowner as against agreed purchaser as to freight moneys and disbursements made in earning them are same as mortgagee's. -Id.

III. CHARTERS.

District Court cannot review, as appellate tribunal, rulings made by commissioner issuing search warrant (18 USCA § 627).-Id.

Petition praying that search warrant be quashed and property seized returned, rule nisi having been issued to district attorney, should be treated as summary rule against district attorney, requiring him to surrender property improperly seized, reviewable at once.-Id.

Evidence showed probable cause for detaining fight films, seized for use as evidence in prosecution for conspiracy to send films into state for public exhibition (18 USCA § 405).—Id.

7(6) (U.S.C.C.A.W.Va.) Warrant cannot issue unless dwelling is used for unlawful sale (Const. Amend. 4; National Prohibition Act, tit. 2, § 25 [27 USCA § 39]; Espionage Act 1917, tit. 11 [18 USCA § 611 et seq.]).Thompson v. U. S., 22 F. (2d) 134.

7(10) (U.S.C.C.A.W.Va.) Federal prohibition agent cannot search private dwelling without search warrant (Const. Amend. 4; National Prohibition Act, tit. 2, § 25 [27 USCA § 39]; Espionage Act 1917, tit. 11 [18 USCA § 611 et seq.]).-Thompson v. U. S., 22 F. (2d) 134.

SHERIFFS AND CONSTABLES.

IV. LIABILITIES ON OFFICIAL BONDS.

168(6) (U.S.C.C.A.Idaho) In action on bond for arrest and assault by deputy sheriff without warrant, both lawfulness of arrest and use of unnecessary force held in issue.-Fidelity & Deposit Co. of Maryland v. Bardsley, 22 F.(2d) 603.

SHIPPING.

II. TITLE.

24 (U.S.C.C.A.Va.) Contract of shipbuilding company in default under construction contract to buy ships from government held executed sale, and government became mere creditor holding title as security.-Virginia Ship building Corporation v. U. S., 22 F. (2d) 38, affirming decree (D. C.) Same v. U. S. Shipping Board Emergency Fleet Corporation, 292 F. 440.

27 (U.S.C.C.A.Va.) Government's contract to sell ships held not abrogated by subsequent modification recognizing buyer's obligations.Virginia Shipbuilding Corporation v. U. S., 22 F.(2d) 38, affirming decree (D. C.) Same v. U. S. Shipping Board Emergency Fleet CorpoGovernment's contract of sale of vessels held not abandoned or rescinded by government's seizure of vessels on buyer's default.-Id.

ration, 292 F. 440.

Seller's failure to deliver legal title because of buyer's failure to perform conditions held not to relieve buyer of its obligation under contract. -Id.

27 (U.S.D.C.N.Y.) Freights earned while agreed purchaser of ship is in possession belong to purchaser, but those earned after owner retakes ship for breach of agreement

under agreement in charter party is not condition precedent to admiralty court's jurisdiction of libel based on such charter party (United States Arbitration Act, §§ 2-4, 8 [9 USCA §§ 2-4, 8]).-Danielsen v. Entre Rios Rys. Co., 22 F. (2d) 326.

45 (U.S.D.C.N.Y.) Charter became limited to port designated by charterer as loading port in accordance with contract of affreightment.U. S. v. Russian Volunteer Fleet, 22 F. (2d) 187.

47 (U.S.D.C.Mass.) Charterer obligated to provide a suitable place for discharge of vessels.-Pendleton Bros. v. Northern Coal Co., 22 F. (2d) 317.

con

50 (U.S.D.C.Pa.) Under charter party making consignee liable for "port charges," signee held liable for towage up Delaware Bay and river to unloading dock at Philadelphia.Christianssand Shipping Co. v. Marshall, 22 F. (2d) 192.

54(2) (U.S.D.C.N.Y.) Charterer held liable for injury to scow from pounding against side of moored ship in gale.-Charles A. Fox, Inc., v. U. S., 22 F. (2d) 351.

V. LIABILITIES OF VESSELS AND OWNERS IN GENERAL.

76 (U.S.C.C.A.N.Y.) Seller of tug, reserv ing title, held not liable for repairs, notwithstanding stipulation in sale contract for bond to secure it against liens.-The Boise Penrose, 22 F.(2d) 919, reversing decree (D. C.) 15 F. (2d) 70.

84 (2) (U.S.D.C.Md.) Shipowner owes stevedores duty of exercising diligence to furnish reasonably safe place to work, reasonably suitable appliances, and warning of latent dangers. -The Henry S. Grove, 22 F. (2d) 444.

84 (314) (U.S.C.C.A.Or.) Ship held not liable for injury to longshoreman by stepping into hatchway from which he was assisting in removing the cover.-Seas Shipping Co. v. Ward, 22 F. (2d) 251.

84(32) (U.S.D.C.Md.) Ship held not liable for injuries to stevedore caused by falling hatch cover.-The Henry S. Grove, 22 F. (2d)

444.

Absence of tent covers, resulting in failure to remove hatch cover during rainy weather, held no defense to stevedore's libel for injuries.

-Id.

con

84(5) (U.S.D.C.Md.) Under statute, tributory negligence of stevedore will not bar, but may diminish, recovery, under doctrine of comparative negligence (Merchant Marine Act 1920, § 33 [46 USCA § 688]; Employers' Liability Act [45 USCA §§ 51-59]).-The Henry S. Grove, 22 F. (2d) 444.

86(234) (U.S.D.C.Md.) Stevedore's injury from falling hatch cover held proximate result of negligence of stevedore company.-The Henry S. Grove, 22 F. (2d) 444.

VII. CARRIAGE OF GOODS. state 102 (U.S.C.C.A.N.Y.) Statutes of where carriage contract was made could not