to the 13th of September, before applying for his discharge, and then be excused because illness befell him. It is a sufficient reason within the statute to establish that the bankrupt was sick and thus unavoidably prevented from applying for his discharge. In re Waller, 249 F. 187, 161 C. C. A. 223; In re Casey (D. C.) 195 F. 322; In re Agnew & Sherman (D. C.) 225 F. 650. The motion is addressed to the reasonable discretion of the court. The bankrupt would expect to apply for his discharge in the latter part of the statutory period in the ordinary course, and, having waited until the latter part of the period, he should not be deprived of the rights accorded him under the statute. In the exercise of a reasonable discretion, the District Judge was justified in holding that he was unavoidably prevented and in extending further time in view of his illness. In re MacLauchlan (C. C. A.) 9 F. (2d) 534. Order affirmed.

ERIE R. CO. v. CLEVELAND RY. CO. (Circuit Court of Appeals, Sixth Circuit. November 4, 1926.)

No. 4578.

Street railroads 41 (4)-Railroad company's obligation to maintain gates held considera: tion for agreement placing larger cost of maintaining track crossing on street railway

(Gen. Code Ohio, § 3775).

Implied obligation in contract between street railway and railroad company for railroad company's maintenance of gates held sufficient consideration for contract placing larger part of maintaining track crossing on street railway company, notwithstanding Gen. Code Ohio, 3775, requiring expense to be borne jointly.

In Error to the District Court of the United States for the Eastern Division of the Northern District of Ohio; Paul Jones, Judge.

Action by the Cleveland Railway Company against the Erie Railroad Company. Judgment for plaintiff, and defendant brings error. Reversed.

B. D. Holt, of Cleveland, Ohio (Cook, McGowan, Foote, Bushnell & Burgess, of Cleveland, Ohio, on the brief), for plaintiff in er

ror.

Edw. H. Chaney, of Cleveland, Ohio (Squire, Sanders & Dempsey, of Cleveland, Ohio, on the brief), for defendant in error. Before DENISON, MOORMAN, and KNAPPEN, Circuit Judges.

That

PER CURIAM. Defendant in error is a street railway whose tracks cross the tracks of plaintiff in error, a steam railroad, at East Ninety-Third street in the city of Cleveland. The predecessor of the railroad company granted to the predecessor of the railway company the right to construct its tracks across the railroad tracks at that point under a contract by the terms of which the larger part of the cost of maintaining the crossing was placed upon the railway company. company sued the railroad company to recover half of the cost that it had incurred in maintaining the crossing. The railroad company relied in defense upon the contract. In reply the railway attacked the contract as void for want of consideration, there being, as it alleged, at the time the contract was made, a statute of Ohio (section 3775, General Code) by which the cost of maintaining the crossing of a street railway with a steam railroad was to be borne jointly by the companies. The trial court held that, in view of the statute, there was no consideration for the contract.

We do not agree with the decision below, because, while it is not clear that we should regard the provisions as to employing an additional watchman and installing an interlocking apparatus as imposing any obligation on the railroad, it seems certain that that company obligated itself to maintain two-arm gates on both sides of its tracks at Union street and Woodland Hills avenue (now East Ninety-Third street). The obligation is clearly implied in the contract, and in our opinion it is a covenant operating to the advantage of the railway, to the performance of which the railroad is not bound save by the contract. It is true that the cost of erecting the twoarm gates at these points was paid by the railway company, but the duty to maintain them rests on the railroad company. This is a continuing obligation for the benefit of both companies, created and existing by the contract alone. It is, we think, a sufficient consideration to support the promises and undertakings of the railway company.

Judgment is reversed.

7476

Design patent No. 43,459, for knitted necktie, held valid and infringed.

2. Patents 43.

Novel design of knitted necktie, useful, ornamental, and pleasing, is patentable, notwithstanding novel element is hidden when waistcoat is worn.

Appeal from the District Court of the United States for the Southern District of

New York.

Patent infringement suit by the Franklin Knitting Mills, Inc., against the Gropper Knitting Mills, Inc. From a decree dismissing its bill (7 F.[2d] 381), plaintiff appeals. Reversed and remanded with directions.

Harold R. Lowe, of Jamestown, N. Y. (Edward M. Evarts, of New York City, of counsel), for appellant.

Goldenberg & Silverman, of New York City, for appellee.

Before MANTON, HAND, and MACK, Circuit Judges.

MACK, Circuit Judge. The trial judge, doubting infringement and finding lack of novelty and invention in design patent No. 43,459, for knitted necktie, issued January 21, 1913, dismissed the bill for infringement thereof.

[1, 2] Concededly, the so-called "merrowed" edge shown in patent drawing is new; so, too, is the concave curve of the tapering ends and the rounded tongues or points; the relative size of the two ends is old. Defendant copies the merrowed edge and the rounded point; neither party in practice has the concave curve.

Plaintiff's tie has been commercially highly successful; defendant has paid it the tribute of almost exact imitation; the slight departure from the patent design in our judgment is not sufficiently noticeable to the average purchaser or wearer to avoid infringement.

That the novel element in the design is hidden, if a waistcoat is worn, is immaterial; ties are marketed as such; they are bought, not only because of their utility to the wearer and their attractiveness to others when worn, but also because of the appeal, as novel, ornamental, and pleasing, that the design makes to the aesthetic sense of the purchaser, ofttimes the wife, sweetheart, or

Where, in collision case, fault of one party is gross and unescapable, contributing fault of other party must be proved by clear and convincing preponderance of evidence. 2. Salvage 29.

In awarding salvage, apprehension of danger on part of those originally in charge of salved property should be considered in determining quantum of salvage.

3. Salvage 51-To justify reversal, award of salvage must have been based on clear mistake, violation of just principles, or departure from authority; that reviewing court would have granted less relief is insufficient.

To justify reversal award of salvage must have been based on clear and palpable mistake, violation of just principles, or departure from path of authority, and mere fact that reviewing court would not have granted so much salvage as that awarded is insufficient.

said claimants against the vessels of each other. From an adverse decree in each case, the Lehigh Valley Railroad Company appeals. Affirmed.

William F. Purdy, of New York City, for McAllister Towing & Transportation Co., Inc.

Foley & Martin, of New York City, for the Cornell and another.

Paul Speer, Pierre M. Brown and Macklin, Brown, Lenahan & Speer, all of New York City, for the Burlington Socony and Socony No. 117.

Before HOUGH, MANTON, and MACK, Circuit Judges.

PER CURIAM. A recital of the facts does not seem necessary. We recognize the following propositions of law:

[1] 1. Where, in a collision case, the fault of one party is gross and unescapable, the alleged contributing fault of any other party must be proven by a clear and convincing preponderance of evidence.

[2] 2. In awarding salvage, the state of mind-i. e., the apprehension of danger on the part of those originally in charge of the salved property-is a fair subject of consideration in determining the quantum of sal

In Error to the District Court of the United States for the District of Porto Rico; Ira K. Wells, Judge.

Luis Garcia Neander was convicted of stealing from funds belonging to the United States, and he brings error. Affirmed.

B. F. Sanchez and H. R. Francis, both of San Juan, Porto Rico, for plaintiff in error.

George R. Farnum, Asst. U. S. Atty., of Boston, Mass. (John L. Gay, U. S. Atty., and Jesus A. Gonzalez, Asst. U. S. Atty., both of San Juan, Porto Rico, on the brief), for the United States.

Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.

BINGHAM, Circuit Judge. This is an indictment charging in the first count that the defendant on or before the 8th day of July, 1925, at San Juan, Porto Rico, being the su perintendent of mails connected with the collection of customs duties on mail entries of imported foreign merchandise received in the post office at that place, "did then and there willfully, knowingly, unlawfully, feloniously,

and with criminal intent to defraud the United States, embezzle and convert to his own use a certain portion of the customs duties collected on mail entries of imported merchandise, the sum of" $1,361.44, which had come into his possession because of his employment as aforesaid. In the second count he was

charged with willfully and feloniously stealing said sum from funds belonging to the United States.

He was found guilty on the second count, not guilty on the first, and was sentenced to a term of three years at hard labor at Atlanta and to pay the costs of suit.

After the verdict was rendered and before sentence the defendant moved for a new trial on the grounds (1) that the verdict was contrary to law; (2) that it was contrary to the evidence; and (3) that the court erred in refusing to give the instructions asked by the defendant. The single error assigned is that the court erred in not granting the motion for a new trial.

The evidence given at the trial is not reported, and it nowhere appears in the record what instructions, if any, were requested by the defendant, or that the denial of the motion for a new trial was excepted to. Under the circumstances, it is apparent that no question of law is presented for our consideration.

The judgment of the District Court is affirmed.

Appeals from the District Court of the United States for the Northern District of New York.

Separate libels by Joseph Leonard, by Henry Patnode, and by William Malia against the steam tug Defender, her engines, etc.; Lake Champlain Transportation Company, claimant. Decrees for libelants, and claimant appeals. Affirmed.

O. A. Dennis, of Whitehall, N. Y., for appellant.

Macklin, Brown & Van Wyck, of New York City (Paul Speer, of New York City, of counsel), for appellees.

Appeal from the District Court of the United States for the Northern District of Georgia; Samuel H. Sibley, Judge.

Habeas corpus by Edward Van Meter against John W. Snook, Warden of the United States Penitentiary, Atlanta, Ga. From an order denying a discharge, petitioner appeals. Affirmed.

Edward Van Meter, in pro. per.

J. W. Henley, Asst. U. S. Atty., of Atlanta, Ga., for appellee.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

PER CURIAM. This is an appeal from an order denying a discharge under a writ of habeas corpus. The attack on the judgment of conviction under which appellant was held was based on the action of the trial court in overruling a plea of former conviction; that court's jurisdiction of the offense charged and of the appellant not being impeached.

[1,2] The ground of attack on the judgment being a mere asserted error of the trial court in ruling on a matter set up as a defense, that action of the trial court is not subject to be reviewed on habeas corpus. Ex

PER CURIAM. [1, 2] We are of opinion that the tug was not managed with ordinary skill, because steering by compass she deviated from her course so greatly in so short a distance. We think no fault is attributable to the boats in tow that were injured, because, if they had attempted to steer, they could not have affected the drift of the tow. We think the testimony for the boats Catherine and Fallon was sufficient to show that they received some injuries on the reef off Valcour Island.

Decrees affirmed, with costs.

VAN METER v. SNOOK, Warden, etc. (Circuit Court of Appeals, Fifth Circuit. October 19, 1926.)

No. 4914.

1. Habeas corpus 30(1).

Alleged error of trial court in ruling on matter set up as defense is not subject to review on habeas corpus.

2. Habeas corpus 30(1).

If trial court's ruling on matter set up as defense is erroneous, error will not render judgment of conviction a nullity as regards right to discharge on habeas corpus.

L. Ed. 1005; In re Eckart, Petitioner, 166 U. S. 481, 17 S. Ct. 638, 41 L. Ed. 1085; 29 C. J. 45. If the attacked ruling was erroneous, the error did not have the effect of rendering the judgment of conviction a nullity.

The order is affirmed.

UNITED STATES ex rel. NG WING V.
BROUGH, Inspector.
UNITED STATES ex rel. FAY YING v.
SAME.

(Circuit Court of Appeals, Second Circuit. November 1, 1926.)

Nos. 116, 117.

1. Aliens 32(8)-Evidence held to warrant deportation of Chinese couple for practicing prostitution and for connection with management of house of prostitution (Immigration Act 1917, § 19 [Comp. St. § 42891⁄4ji]).

Evidence, apart from ex parte testimony, held to warrant deportation, under Immigration Act Feb. 5, 1917, § 19 (Comp. St. § 42894jj), of Chinese female for practicing prostitution and of Chinese male for being connected with management of house of prostitution.

2. Aliens 53.

Under Immigration Act 1917, § 19 (Comp. St. 8 42894jj), male alien connected with

4. Habeas corpus 92(1).

In habeas corpus to review deportation proceedings not involving citizenship, district court may summarily determine facts and dispose of claims as law and justice require. 5. Habeas corpus 85(1)—Rules of evidence applicable to a judicial hearing do not apply to deportation proceedings, and hearsay evidence is admissible, but hearing must be fair.

In deportation proceedings, not involving citizenship, Department of Labor is not bound by rules of evidence governing judicial hearings, and, on review by habeas corpus, hear say evidence is admissible, only limitation being that hearing must be fair, and finding of fact based thereon will not be reversed on appeal.

6. Habeas corpus 85(1).

On habeas corpus to review deportation proceedings, ex parte statements of witnesses are admissible for what they are worth, in view of absence of cross-examination.

7. Aliens 32 (9)-In deportation, hearing is not unfair if witnesses are not produced because of government's inability to find them. Where opportunity to cross-examine witnesses is demanded by alien sought to be deported, hearing may be unfair if they are not produced; but it is not unfair if witnesses are not produced because of government's inability to find them.

Appeals from the District Court of the United States for the Southern District of

New York.

Habeas corpus by the United States, on the relation of Ng Wing, alias Ng Wing Tung, and by the United States, on the relation of Fay Ying, alias May Wai Ching, against Alfred W. Brough, as Inspector. From orders dismissing the writs, relators appeal. Affirmed.

Emory R. Buckner, U. S. Atty., of New York City (Nathan R. Margold, of New York City, of counsel), for appellee.

Before HOUGH, MANTON, and HAND, Circuit Judges.

MANTON, Circuit Judge. The relator, Fay Ying, was held for deportation under section 19 of the Immigration Act of February 5, 1917, c. 29, 39 Stat. 889 (Comp. St. §

ticing prostitution subsequent to her entry into the United States. The relator Ng Wing was ordered deported on the ground that he had been connected with the management of a house of prostitution under the same section. Writs of habeas corpus were sued out, and after a hearing they were sustained, but in doing so the District Judge directed that further hearings be had either before a special master appointed by him or before the court. Later the District Judge conducted hearings at which he admitted a certified record of the departmental proceedings and gave opportunity to the aliens to produce and offer such testimony as they were advised. See U. S. ex rel. Singleton v. Tod (C. C. A.) 290 F. 78. Thereafter the court held that the warrants of deportation were properly issued and

dismissed the writs.

[1] The Chinese inspector in charge of the port of New York initiated these proceedings for the deportation of the aliens as a result of a letter sent to him. In company with others, he called at No. 38 East Broadway, New York City, the house described in the letter, made entry to the apartment, and there found five or six Chinese men, including the appellant Ng Wing, sitting in the front parlor of the apartment. The appellant, Fay Ying, was in the kitchen, partly dressed. There were two bedrooms, each with a double bed. There was ample evidence to justify the commissioner and the court below in finding that these were common accessories to houses. of this type in which Chinese women prostitutes carry on their trade. The house was richly furnished, and the equipment and clothing found by the inspector was luxurious, more so, at least, than was to be expected from the station in life of each of the appellants and their positions of employment which they stated.

The Chinese inspector took statements under oath from the appellants. Ng Wing denied that he lived at the apartment, and stated that Fay Ying lived there with her husband. This was later admitted by them to be false. They were living together, in adulterous intercourse, at this address. She has a husband living. The inspector conversed with the Chinamen present in the front parlor. He testified that he made known to these persons the object of his call. The Chinese men talked with him, and said that they were there for immoral purposes and intended to have relations with the woman, for which they were to pay. He testified that they were there on other occasions for the same purpose and had improper relations with the woman for pay.