TION IN LOWER COURT OF 32(13) (U.S.C.C.A.) On appeal to the Secre-, V. PRESENTATION AND RESERVAtary of Labor from an order deporting a Chinese, appellant has no right to have his counsel appear to present further evidence or argue orally.-Chin Hing v. White, 382. III. IMMIGRATION. 54 (U.S.C.C.A.) A Chinese person, in the United States in violation of Chinese Exclusion Act, § 6, and Immigration Act, § 36, cannot, more than three years after his entry, be summarily deported under Immigration Act, §§ 20, 21, but proceedings must be brought under Chinese Exclusion Act, § 13.-Moy Wing Sun v. Prentis, 40. 54 (U.S.C.C.A.) To deport a Chinese person on the ground of his being in the United States in violation of the Immigration Act, in that he was a person likely to become a public charge and that he entered without inspection, proceedings must be begun within three years after his entry.-Wong Yuen v. Prentis, 44. (C) Exceptions. 274(5) (U.S.C.C.A.) In action to recover compensation for procuring an agency, held, that exception to charge did not present question whether expenses should be deducted from the agreed commission, and so such question cannot be raised on error.-Ransom & Randolph Co. v. Pinches, 445. VI. PARTIES. 324 (U.S.C.C.A.) Where his codefendant appeared, filing a waiver, held, that writ of error sued out by plaintiff in error would not be dismissed for his failure to serve notice upon or obtain severance from his codefendant.-Richards v. American Bank of Alaska, 202. XVI. REVIEW. (A) Scope and Extent in General. necessitating reversal, the appellate court need may differ on retrial, there being other errors not determine whether an instruction correct in law was justified by the facts.-Murray v. Third Nat. Bank of St. Louis, 247. That after a freight car, sealed before it left the United States, whence it was carried into843 (2) (U. S. C. C. A.) Where the evidence and out of Canada, was found to contain, a Chinese person on return, does not establish his unlawful entry into the United States.-Id. Proof that a Chinese person had been deported in November, 1910, for attempting to enter on a fraudulent certificate, does not show, nearly 866(1) (U.S.C.C.A.) On writ of error from four years later, that his subsequent entry into a judgment dismissing an action on demurrer. the United States was within three years of the all questions raised by the demurrer are reinstitution of proceedings for his deportation.- viewable.-Dowd v. United Mine Workers of America, 495. Id. AMENDMENT. (G) Questions of Fact, Verdicts, and Findings. See Admiralty, 117; Appeal and Error, 994(2) (U.S.C.C.A.) The credibility of wit70; Pleading, 236. ANIMALS. See Carriers, 37; Contracts, 303. ANTICIPATION. See Patents, 52. APPEAL AND ERROR. See Criminal Law, 1054, 1056. III. DECISIONS REVIEWABLE. nesses is for the jury, and cannot be reviewed on appeal.-Waters v. Guile, 298. 1011(1) (U.S.C.C.A.) Findings of fact, based on conflicting evidence taken in open court, I will not be disturbed on appeal, in the absence of a showing that in arriving at such findings the trial court erroneously applied some rule of evidence or found contrary to the decided weight of testimony.-Leggat v. McLure, 386. 1011(1) (U.S.C.C.A.) Findings of fact, made on conflicting evidence, will not be reversed, unless it clearly appears that the court made a serious mistake in the finding of fact, or fell into a controlling error of law.-Luten v. Sharp, 478. 1022(3) (U.S.C.C.A.) A decree based on the report of the master, who heard the evidence, will not, in case of conflict, be disturbed on appeal.-Parker v. Ross, 191. (H) Harmless Error. (D) Finality of Determination. 70(3) (U.S.C.C.A.) An order permitting a defendant to amend the answer, by dismissing 1026 (U.S.C.C.A.) Errors in the conduct of without prejudice a counterclaim pleaded there- a trial, which are inconsequential, do not warin, is interlocutory, and not appealable.-Econ- rant a reversal.-Compagnie Générale Transatomy Fuse & Mfg. Co. v. Killark Electric Mfg. lantique v. Bump, 68. Co., 614. 1047(3) (U.S.C.C.A.) In view of uncontra80(4) (U.S.C.C.A.) In suit to set aside trans-dicted testimony as to plaintiff's injuries, held, fer of stock of another company by corporation, any error in not striking out a physician's interlocutory decree declaring transfer fraudu- opinion as speculative was harmless.-Chicago lent and providing for an accounting held in no Rys. Co. v. Kramer, 147. sense final, so that appeal therefrom must be 1048(1) (U.S.C.C.A.) A nonresponsive andismissed. Cutting v. Woodward, 209. swer of a witness is not prejudicial, where 669 INDEX-DIGEST merely cumulative of other testimony to the same general effect received without objection. -Waters v. Guile, 298. ASSUMPSIT, ACTION OF. ASSUMPTION OF RISKS. 211–226, 280. See Sales, 340. 1050(1) (U.S.C.C.A.) The erroneous admission of evidence is harmless, where similar evidence of more forcible character is admitted See Master and Servant, without objection.-Waters v. Guile, 298. 1062(1) (U.S.C.C.A.) Measure of damages on all the counts for personal injury being the 1062(1) (U.S.C.C.A.) Where it is impossible to determine whether a verdict was based on a ground of liability improperly submitted, the submission of such ground of liability is prejudicial error.-Murray v. Third Nat. Bank of St. Louis, 247. 1066 (U.S.C.C.A.) Where it was sought to hold plaintiff in error as a partner on a purported firm note, an instruction on existence of partnership unauthorized by evidence was reversible error, there being nothing to indicate that jury found a ratification by plaintiff in error.-Richards v. American Bank of Alaska, 202. (I) Error Waived in Appellate Court. 1078(1) (U.S.C.C.A.) Failure to argue as signments of error waives them.-Town of Newbern v. National Bank of Barnesville, Ohio, 111. (K) Subsequent Appeals. ATTACHMENT. ATTORNEY AND CLIENT. See Aliens, 32; Corporations, 456, 519, See Pledges; Warehousemen. BANKRUPTCY. II. PETITION, ADJUDICATION, WAR- (B) Voluntary Proceedings. 51 (U.S.C.C.A.) Where defendant's claims against the estate of her son, who became a bankrupt, were allowed such adjudication is conclusive as to the existence of the debts, and cannot be questioned in a proceeding by another creditor of the son against defendant.Gleason v. Thaw, 336. (C) Involuntary Proceedings. 69 (U.S.C.C.A.) Before one can be adjudicated a bankrupt as a member of a firm, it must appear that he was in fact a partner.-In re Kaplan, 464. 1099(1) (U.S.C.C.A.) In an action at law, previous decisions of an appellate court are not findings of fact, nor are conclusions used for the purpose of argument in directing formulation of pleadings equivalent to decision upon meaning of statements to be included in plead-100(1) (U.S.C.C.A.) Where the alleged bankings.-Gleason v. Thaw, 336. ARCHITECTS. See Contracts, 284. ASSETS. See Bankruptcy, 250. ASSIGNMENT OF ERRORS. See Appeal and Error, 1078. ASSIGNMENTS. See Patents, 202-216. I. REQUISITES AND VALIDITY. ASSIGNMENTS FOR BENEFIT OF See Bankruptcy. rupt and a creditor resisted an involuntary III. ASSIGNMENT, ADMINISTRATION, Title, Rights, and 140(1) (U.S.C.C.A.) A contract under which property was purchased by bankrupt on claimant's account construed, and held not one of conditional sale, but one under which the property remained that of claimant and recoverable from the trustee.-Smith Wallace Shoe Co. v. Ternes, 642. 140(2) (U.S.C.C.A.) Petitioner, who engaged room for freight in a vessel for which bankrupt had agreed to furnish a full cargo, held entitled, having paid freight on bankrupt's representations that it was agent of the steamship, to reclaim the freight money; the representations being false, and the bankrupt not having satisInterocean fied the freight charges.-In re Transp. Co. of America, 461. For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and KEY-NUMBER 143(5) (U.S.C.C.A.) Mortgagees, until they, assert their rights in the rents by proceedings to sequester them, cannot assert any rights as against the trustee in bankruptcy of the mortgagor to rents collected before assertion, though the rents were included in the mortgage.-In re Clark Realty Co., 342. 253 (U.S.C.C.A.) Under Bankr. Act, § 64a, held, that mortgagees, not having taken steps to require the trustee to pay tax liens, could not require the trustee, the mortgaged premises having been sold for taxes, to redeem the same by applying rents previously collected to that purpose. In re Clark Realty Co., 342. (E) Actions by or Against Trustee. 150 (U.S.C.C.A.) A trustee in bankruptcy is under no obligation to accept a patent license burdened with executory obligations.-293(4) (U.S.C.C.A.) Failure of appellants to In re Wisconsin Engine Co., 183. 151 (U.S.C.C.A.) In bankruptcy proceedings of a firm of cotton factors by virtue of Bankruptcy Act, § 47a (2), as amended by Act June 25, 1910, the trustee represented ansecured creditors with the same effect as if they had, on the date of the filing of the petition in bankruptcy, levied executions upon the cotton stored by the firm in a warehouse.Interstate Banking & Trust Co. v. Brown, 526. (C) Preferences and Transfers by Bank 160 (U.S.C.C.A.) Under Bankruptcy Act, 60b, insolvency at time of transfer which must be shown to avoid transfer as preference is not merely that debtor was unable to pay all his debts if then presented, but under section 1, subd. 15, that his property at fair valuation was then insufficient to pay his debts.-In re Walker Starter Co., 645. move to quash service, or except thereto, held waiver of any right to object that being nonresidents, and the property, the surrender of which was sought, being in other states, there could be no summary order of surrender by bankruptcy court.-Alco Film Corp. v. Alco Film Service of Minnesota, 71.` (F) Claims Against and Distribution of Estate. 316(1) (U.S.C.C.A.) The mere giving of notes, to evidence or in prepayment of clearly conditioned obligations, will not annul the conditions or make an otherwise unprovable claim allowable in bankruptcy.-In re Wisconsin Engine Co., 183. 322 (U.S.C.C.A.) Negotiable promissory notes given by a patent licensee in payment for the license on a royalty basis, held payable in any event, and properly allowed by the trustee in bankruptcy of such licensee at their discount value as of the date bankruptcy proceedings 185 (U.S.C.C.A.) Under Bankr. Act, § 47a, were begun, and not the pro rata amount of the trustee has the rights of an execution cred-earned royalties apportionable to the date of itor of the bankrupt, and as such may assert bankruptcy.-In re Wisconsin Engine Co., 183. such rights as against one who bought chattels from the bankrupt, but never received possession; there being no delivery.-In re Ricketts, 187. (D) Administration of Estate. A contract provision that notes should be given in payment of patent license on royalty basis, and should be negotiable. is evidence tending to show that the amount of such notes should be payable in any event, and should licensee at their face value.-Id. be allowable by the trustee in bankruptcy of the 250(1) (U.S.C.C.A.) It is the imperative duty of a trustee of a bankrupt estate to exercise all diligence to collect the assets of the 339 (U.S.C.C.A.) The reduction of an alestate, and in the absence of explanation, the leged debt to judgment in a state court before trustee is deemed to be negligent in failing to bankruptcy does not exempt it from attack by collect assets listed in the schedules.-In re or on behalf of creditors who would be injuriousKuhn Bros., 179. ly affected by its allowance.-In re Continental Engine Co., 74. Where a suit to foreclose a mortgage securing notes due a bankrupt was pending, held, that allegations in such suit that the notes belonged to the attorney did not excuse the trustee in failing to promptly collect the notes by foreclosure.-Id. That the creditor might have discovered the existence of notes due the bankrupts which were secured by a mortgage, and had the same avenues of information as the trustee, will not excuse the trustee's failure to promptly enforce the obligations.-Id. That bankrupt's schedules did not disclose that notes listed were secured by mortgage, where it could readily have been ascertained by trustee, as could pendency of foreclosure suit, will not excuse trustee's failure to promptly foreclose and collect the notes.-Id. Where the bankrupt's right to lost notes was subsequently established by the trustee, the fact that investigation of notes listed would 345 (U.S.C.C.A.) Although the patentee had an agreement, valid between him and the licensee for sale of the patented articles, to take back all unsold goods at list prices and credit the licensee's account therewith, the court could not, as a condition of his repurchasing the articles, order his unsecured claim paid in full to the exclusion of all other unsecured creditors of the bankrupt licensee.-L. E. Waterman Co. v. Kline, 489. (G) Accounting and Discharge of Trustee. 369 (U.S.C.C.A.) That the accounts of the receiver, who did not collect notes due the bankrupt, were O. K.'d by the principal creditor and approved by the court, is no defense to a proceeding to surcharge the accounts of the trustee for his negligence in collecting such notes.In re Kuhn Bros., 179. IV. COMPOSITION. have established that some of them were lost will not excuse the trustee's failure to promptly foreclose a mortgage securing such notes. 384 (U.S.C.C.A.) An offer of composition, -Id. approved by 98 per cent. of the creditors in number and amount, will, where the estate had V. RIGHTS, REMEDIES, AND DIS- 408(1) (U.S.C.C.A.) A bankrupt who com- CEEDINGS. (A) Superintendence and Revision. 441 (U.S.C.C.A.) Under Bankr. Act, § 24b, a proceeding to review whether, assuming all controverted facts in favor of the trustee, an order approving its accounts was justified, is one to review a matter of law, of which the Circuit Court of Appeals has jurisdiction.-In re Kuhn Bros., 179. (B) Appeal. 449 (U.S.C.C.A.) Under Bankr. Act, § 25a, appeals are taken as in equity.-In re Kaplan, 464. 467 (U.S.C.C.A.) An order adjudging appellant a bankrupt as a member of a firm, based on conflicting evidence, will not be disturbed on appeal, notwithstanding such appeal presents the controversy for determination de novo, unless the record discloses a misapprehension of the testimony. In re Kaplan, 464. VIII. OFFENSES AGAINST BANK- 495 (U.S.C.C.A.) In a prosecution for making false oaths in a proceeding in bankruptcy, the judgment roll in a previous action, to which defendant was a party, held admissible as bearing on defendant's motive and the reason for his testimony in the bankruptcy proceeding.Hopkins v. United States, 465. BANKS AND BANKING. See Evidence, 130; Notice, 3. 153 (U.S.C.C.A.) Where plaintiff, for the mortgagor, deposited money in the bank to discharge the mortgage and the bank made, but retained, certificate of deposit in favor of the mortgagee and notified her thereof, the transaction was not a loan, but the bank held the money in trust for the mortgagee, and, on its failure before execution thereof, plaintiff could recover the sum as against general creditors of the bank.-Titlow v. Sundquist, 379. BAR. See Judgment, 570-748. BARTER. See Exchange of Property. BILL. BILL OF LADING. See Carriers, 125. BILLS AND NOTES. See Bankruptcy, 316, 322; Corporations, I. REQUISITES AND VALIDITY. (E) Consideration. 97(1) (U.S.C.C.A.) Where a note is given by a corporation for commissions to be earned by selling its stock, and the payee does nothing, there is a failure of consideration.-In re Continental Engine Co., 74. V. RIGHTS AND LIABILITIES ON IN DORSEMENT OR TRANSFER. (A) Indorsement Before Delivery to or Transfer by Payee. 243 (U.S.C.C.A.) Under the Ohio Negotiable Instruments Act (Gen. Code Ohio, § 8168), held, that directors, who indorsed a note given by the president to raise funds to pay for a subscription to stock newly issued, were liable only as indorsers; there being nothing to indicate that they were liable in any other capacity. -Murray v. Third Nat. Bank of St. Louis, 247. (D) Bona Fide Purchasers. 332 (U.S.C.C.A.) The transferee of a note held to have taken it with notice, where he admitted having known where the payee got it and what it was for.-In re Continental Engine Co., 74. 354 (U.S.C.C.A.) Under Negotiable Instruments Law Ill. § 54, a transferee can recover only the amount paid for a note before receiving notice of defects in it.-In re Continental Engine Co., 74. VI. PRESENTMENT, DEMAND, NO- 394 (U.S.C.C.A.) Under the Ohio Negotiable Instruments Act (Gen. Code Ohio, §§ 8175, 8185), directors of a bank, who signed a note to enable the president to subscribe for shares of stock unsubscribed for by the public, and thus to insure an issue of new stock, held not persons primary liable, and so not entitled to presentment for payment; the note not being one for their accommodation.-Murray v. Third Nat. Bank of St. Louis, 247. For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and KEY-NUMBER 404(1) (U.S.C.C.A.) That a demand note bears interest does not make it any the less a demand note, but may be considered in determining whether the parties expected an immediate or early demand.-Murray v. Third Nat. Bank of St. Louis, 247. VIII. ACTIONS. tween plaintiff and German company.-Ransom & Randolph Co. v. Pinches, 445. V. ACTIONS FOR COMPENSATION. 87 (U.S.C.C.A.) Under a contract to procure an agency, held, that expenses which were to be incurred by plaintiff and deducted from the commission must, on defendant's breach, be deducted from plaintiff's recovery.-Ransom & Randolph Co. v. Pinches, 445. 510 (U.S.C.C.A.) In an action on a demand note, signed by the president of a bank and indorsed by its directors, a letter written by the 88(4) (U.S.C.C.A.) In an action to recover vice president of the bank, who negotiated the note, concerning its purpose, held admissible on the question of whether demand was made in a reasonable time.-Murray v. Third Nat. Bank of St. Louis, 247. 537(7) (U.S.C.C.A.) Under the Ohio Negotiable Instruments Act (Gen. Code Ohio, §§ 8176, 8297), the question whether a demand note is presented within a reasonable time is one for the jury, unless the ultimate facts are undisputed, and reasonable men cannot draw different conclusions.-Murray v. Third Nat. Bank of St. Louis, 247. under an agreement whereby defendant was to CANCELLATION OF INSTRUMENTS. In an action on a demand note, the question whether it was presented within a reasonable time held, in view of the circumstances, See Shipping. properly submitted to the jury.—Id. BONA FIDE PURCHASERS. See Bills and Notes, 332, 354; Municipal See Shipping. CARGO. CARRIERS. I. CONTROL AND REGULATION OF (B) Interstate and International Trans portation. 37 (U.S.C.C.A.) Where cattle were confined beyond maximum period of 36 hours allowed by Twenty-Eight Hour Law, the penalty provided may be recovered, though the confinement was not willful, or with intent to injure them or the owner.-Chicago & N. W. Ry. Co. v. United States, 170. Under Twenty-Eight Hour Law, imposing penalty where carrier keeps cattle confined longer than maximum period of 36 hours, unless necessitated by storm or accident, it is no defense that accident occurred on last part of journey, where, despite accident, shipment might have arrived in less than 36 hours, had diligence been exercised.-Id. In an action for the penalty imposed by Twenty-Eight Hour Law for keeping cattle confined longer than 36 hours, evidence that confinement was occasioned by carrier's negligence held sufficient to go to jury.-Id. 37 (U.S.C.C.A.) In an action against a carrier to recover penalty provided in the TwentyEight Hour Law for knowingly and willfully confining stock beyond 36 hours, it is not necessary to recover that there was a direct intent to injure the stock; the question of willfulness being determined from the entire circumstances. Chicago & N. W. Ry. Co. v. United States, 174. IV. COMPENSATION AND LIEN. II. CARRIAGE OF GOODS. 49(3) (U.S.C.C.A.) Defendant, who employed plaintiff to procure for it a general agency (F) Loss of or Injury to Goods. for a German firm, which plaintiff would have 125 (U.S.C.C.A.) Provision in a bill of ladbeen able to do, held not entitled to escape lia- ing that, in case of damage for which the carrier bility on the ground of differences between the was liable it should have the benefit of insurproposed agreement and draft agreement be-ance by the shipper, held not effective under |