as they were conceded in open court on the argument this will not be a hardship to the defendants. The injunction does not affect sales to users whose machines were covered only by the older patents, including the one which expired after hearing in the Circuit Court and before decree. Such machines are about 97 per cent. of all in use. Moreover the machines covered by the unexpired patents are only the expensive automatic ones, selling at $1,800, and of which but few are out. All required of the defendants is that before selling they should make reasonably sufficient inquiries to ascertain if the person buying intends them for use on such a machine. We do not think this is so serious a matter as to require any modification of the injunction while awaiting the decision of the Supreme Court.

GRAHAM et al. v. UNITED STATES. (Circuit Court of Appeals, Fifth Circuit. January 18, 1910.) No. 1,864. In Error to the Circuit Court of the United States for the Northern District of Florida. Lucius J. Reeves and E. C. Maxwell, for plaintiffs in error. Emmett Wilson, for the United States. Before PARDEE, MCCORMICK, and SHELBY, Circuit Judges.

PER CURIAM. The demurrers to the indictment were properly overruled. In neither the impaneling of the jury, the rulings on evidence, nor the charges to the jury, given or refused, do we find reversible error. The judgment of the Circuit Court is affirmed.

In re GREENBERG. (Circuit Court of Appeals, Second Circuit. December 17, 1909.) No. 213. Petition to Review Order of the District Court of the United States for the Eastern District of New York. Ralph Nathan, for petitioner. Irving L. Ernst, for respondent. Before LACOMBE, COXE, and NOYES, Circuit Judges.

PER CURIAM. It seems to be conceded that on the record before us there is no contradiction of the averment in the petitioner's affidavit that the merchandise in question was, at the time of the hearing in the bankruptcy court, in the custody of the United States marshal in the district of North Carolina, pursuant to writ of seizure issued to an ancillary receiver herein. If the receiver has the merchandise, it is difficult to understand upon what theory he can also demand the money that was paid for it. But, however this may be, we are clearly of the opinion that controversies such as this between the receiver and third parties should not be decided summarily on affidavits, but in a plenary suit. Order reversed.

.

GULF & M. R. TRANSP. CO. v. BOARD OF COM'RS OF LAFOURCHE LEVEE DIST. (Circuit Court of Appeals, Fifth Circuit. January 25, 1910.) No. 1,761. Appeal from the District Court of the United States for the Eastern District of Louisiana. John D. Grace, for appellant. F. A. Middleton, for appellee. Before PARDEE, MCCORMICK, and SHELBY, Circuit Judges. PER CURIAM. The verbal charter of the tugboat Mattie M. was a lease, not a demise, and thereunder the owners were responsible for the management and navigation of the tug. The evidence does not satisfactorily show that the master protested against the towing of the bayou barge around and to the head of the crevasse; but, even if he did so protest, when he undertook the said towing he was required to use ordinary skill in handling the barge, and this the master did not do, because, among other things unskillfully done, he tied to and attempted to tow the said barge stern foremost up the river, when that part of the barge was well loaded down, and the bow was not loaded, and had plenty of freeboard. No case was made in the pleadings or evidence entitling the appellant to relief under the Harter act (Act Feb. 13, 1893, c. 105, 27 Stat. 445 [U. S. Comp. St. 1901, p. 2946]). The decree of the Circuit Court was correct, and the same is affirmed.

HENSON & FRANCESCONI CO. v. BROWN. (Circuit Court of Appeals, Fifth Circuit. March 8, 1910.) No. 1,933. In Error to the Circuit Court of the United States for the Southern District of Alabama. Gregory L. Smith, for plaintiff in error. T. M. Stevens and Joseph H. Lyons, for defendant in error. Before PARDEE, MCCORMICK, and SHELBY, Circuit Judges.

PER CURIAM. In this suit, upon an account stated for work and labor done, merchandise, goods, and chattels sold, and for money paid at the instance of the defendant, the defense being that the suit is one to recover on gambling transactions, the questions argued in this court relate entirely to the rulings of the trial judge on the sufficiency of pleadings. On consideration, we find no prejudicial error in any of the rulings complained of, and the judgment of the Circuit Court is affirmed.

HOLMAN v. THOMAS et al. (Circuit Court of Appeals, Second Circuit. January 17, 1910.) No. 168. In Error to the Circuit Court of the United States for the Western District of New York. On motion by attorney for defendants to withdraw. See, also, 171 Fed. 219. Before LACOMBE, WARD, and NOYES, Circuit Judges.

PER CURIAM. This court must decline to interfere in any way with the relations between defendants' counsel and his clients. Whether he shall continue to act for them or shall withdraw from the case is a matter for him to determine at his own risk.

JENKINS et al. v. DILLINGHAM. (Circuit Court of Appeals, Fifth Circult. March 8, 1910.) No. 1,968. Appeal from the Circuit Court of the United States for the Southern District of Texas. John L. Little, for appellants. H. O. Head and T. M. Kennerly, for appellee. Before PARDEE and SHELBY, Circuit Judges.

PER CURIAM. We find the decree appealed from correct as to the claim of Jenkins for 160 acres of land out of the John Fisher survey; but we find that said Jenkins had a claim for such part of said 160 acres as was actually occupied, cultivated, and improved by William Felps prior to February 1, 1894, to wit, 10 years prior to the appointment of receivers in the main case (54, Equity); and, counsel for appellee having suggested that said decree might well be amended in that respect, it is ordered that the decree appealed from be reversed, and the cause remanded, with instructions to find for and set apart to William Jenkins such part of the 160 acres claimed by him as William Felps had under actual cultivation, improvement, and occupation prior to February 1, 1894, and decree in favor of Receiver Dillingham for the re mainder of said 160 acres.

LOUISIANA PETROLEUM CO. v. LEMLE & CRANDALL et al.† (Circuit Court of Appeals. Fifth Circuit. March 1, 1910.) No. 1,927. Appeal from the Circuit Court of the United States for the Eastern District of Louisiana. Edwin T. Merrick and Ralph J. Schwarz, for appellant. Lamar C. Quintero, Philip S. Gidiere, Henry P. Dart, Hanry L. Lazarus, Eldon S. Lazarus, Chas. Carroll, and Jos. W. Carroll, for appellees. Before PARDEE, MCCORMICK, and SHELBY, Circuit Judges.

PER CURIAM. The special master, who heard the witnesses and took the evidence, in a carefully prepared and elaborate report found against the appellant. On exceptions, the Circuit Court, on due consideration, after hearing argument, reduced the master's finding in certain respects, and also found against the appellant. On this appeal we have given the assignments of error full consideration, and reached the conclusion that the decree of the Circuit Court can only be reversed by finding that the manner and methods of delivering oil by the Lone Star & Crescent Company from its tanks, pipes, and † Rehearing denied March 29, 1910.

vessels were so faulty, uncertain, and careless that no effect should be given to the measurements made at the time of delivery of oil to the Louisiana Petroleum Company; and such finding is not warranted under the evidence as we read it. The decree of the Circuit Court is affirmed.

LOUISVILLE & N. R. CO. v. BREWTON. (Circuit Court of Appeals, Fifth Circuit, January 25, 1910.) No. 1.976. In Error to the Circuit Court of the United States for the Northern District of Florida. F. B. Carter and Wm. A. Blount, for plaintiff in error. C. M. Jones and S. Pasco, Jr., for defendant in error. Before PARDEE, MCCORMICK, and SHELBY, Circuit Judges. PER CURIAM. In our opinion the evidence of contributory negligence on the part of the defendant in error's intestate is not sufficient for the court to find as a matter of law, or for the jury to find as a matter of fact, that the said intestate was guilty of contributory negligence. The judgment of the Circuit Court is affirmed.

In re L. W. DAY & CO. (Circuit Court of Appeals, Second Circuit. January 24, 1910.) No. 232. Petition to Review Order of the District Court of the United States for the Southern District of New York. On motion to amend printed record. Before LACOMBE, WARD, and NOYES, Circuit Judges.

PER CURIAM. The respondent may print, as an appendix to his brief, the certificate of Judge Hand as to concessions made on argument before him, together with the moving and opposing petitions, notices, or affidavits on which he made such certificate. All questions as to what consideration shall be given thereto and as to who shall pay the cost of printing the same will be decided when the petition to revise is considered. See, also, (D. C.) 174 Fed. 164.

UNITED STATES v. KNOWLTON DANDERINE CO. (Circuit Court of Appeals, Fourth Circuit. February 1, 1910.) No. 916. Appeal from the District Court of the United States for the Northern District of West Virginia, at Philippi. Reese Blizzard, U. S. Atty., E. M. Showalter, Asst. U. S. Atty., for the United States. Henry M. Russell, Henry M. Campbell, and Charles M. Woodruff, for appellee. Before GOFF and PRITCHARD, Circuit Judges, and CONNOR, District Judge.

GOFF, Circuit Judge. The opinion of the court below, which contains a full statement of the facts, is found in 170 Fed. 449. Appellant assigns as error, in substance, that the court below erred in holding that the 65 casks of liquid extracts were not prepared, used, or shipped in any manner contrary to the laws of the United States, and that the United States had no right through its officers to seize the said casks or any of them. Under the facts disclosed by the record, we conclude that the court below properly found that, even if there was probable cause for making the seizure and filing the libel, the evidence made it plainly appear that the appellee shipped the said casks as its own product, made by its own agent, from the laboratory, of said agent at Detroit, Mich., to the warehouse of the appellee at Wheeling, W. Va.; that said casks of extracts were not intended for sale as shipped, but were to be, at the warehouse mentioned, bottled and labeled as the law requires before being offered for sale. No attempt to evade the law, either directly, indirectly or by subterfuge, has been shown; it appearing that the manufacturer had simply transferred from one point to another the product he was manufacturing, for the purpose of completing the preparation of the same for the market. Under the circumstances disclosed in this case, having in mind the object of the Congress in enacting the law involved, we do not think the liquid extracts proceeded against should be forfeited. Reaching this conclusion, we do not find it necessary to consider other questions discussed by counsel, and referred to in the opinion of the court below. We find no error. Affirmed.

UNITED WRAPPING MACH. CO. v. STIMSON. (Circuit Court of Ap peals, Second Circuit. February 8, 1910.) In Error to the Circuit Court of the United States for the Western District of New York. Application of the United Wrapping Machine Company for a writ of mandamus against Henry C. Stimson. Petition for mandamus denied, and writ of error dismissed. See, also, 156 Fed. 298. Before LACOMBE, WARD, and NOYES, Circuit Judges. PER CURIAM. We do not find in the papers submitted sufficient to indicate that this is a case presenting the "very extraordinary circumstances," which have occasionally induced a modification of the rule that a bill of exceptions cannot be signed after expiration of the term at which the cause was tried, when the court has not reserved control over the case by rule or order. Reader v. Haggin (2d Circuit, March, 1908) 160 Fed. 909, 88 C. C. A. 91. The petition for mandamus is denied, and writ of error dismissed.

In re VICTOR COLOR & VARNISH CO. (Circuit Court of Appeals, Second Circuit. December 14, 1909.) No. 88. Petition to Review Order of the District Court of the United States for the Southern District of New York. Frank H. Gray, for respondent. Hartman & Schuhmann (Frank L. Crocker, of counsel), for petitioner. Before LACOMBE, COXE, and NOYES, Circuit Judges.

PER CURIAM. The record is a meager and unsatisfactory one. There are questions raised as to the authenticity and effect of an alleged agreement not to file the chattel mortgage, and the argument by both sides has been quite extended; but in the opinion of the majority of the court it is not necessary to go into the case so fully. We are clearly of the opinion that the holder of the chattel mortgage was entitled to have his day in court, in a suit to foreclose it, and that so much of the order as refused him leave to begin such a suit on the ground that the property was in the hands of a receiver in bankruptcy must be reversed. It was entirely proper, however, for the bankruptcy court to refuse to give petitioner immediate possession of the property. should remain in the custody of the receiver till the suit is determined, although, of course, if all parties agree, it may be sold and the proceeds held by the receiver. Order modified.

It

WILLIAM CARLISLE & CO. v. NORRIS et al. (Circuit Court of Appeals, Fifth Circuit. February 8, 1910.) No. 1,922. In Error to the Circuit Court of the United States for the Southern District of Texas. G. H. Pendarvis, for plaintiff in error. John C. Matthews and V. A. Collins, for defendants in error. Before PARDEE, McCORMICK, and SHELBY, Circuit Judges.

PER CURIAM. The judgment of the Circuit Court is affirmed, on the authority of Throckmorton v. Price, 28 Tex. 606, 91 Am. Dec. 334, and Hudson v. Randolph, 66 Fed. 216, 13 C. C. A. 402.

END OF CASES IN VOL. 175.

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