the sides of the truck. Each of these sockets was open, but had a slight ridge at the bottom, which prevented a stanchion from slipping through and held it in place. By this arrangement the stanchions extended five or six inches into the sockets. The District Court was of opinion that the evidence failed to disclose any negligence of fellow servants, and awarded the appellee $1,000 as damages.

Appellant furnished a safe appliance. There was no defect in the truck, or in the manner by which the stanchions were made secure in the sockets. The accident occurred, not because of the furnishing of an unsafe appliance, but in the manner of using a safe appliance. Appellant was held liable on the theory that the stanchions were not in place in the sockets. If the stevedores who loaded the truck took the stanchions out of the sockets and failed to place them securely back, their negligence was the cause of appellee's injury. If the truck was loaded without removing the stanchions, and any of them were not in position in the sockets, it was the duty of the stevedores loading the truck to place them in such position. In either event, the accident would be attributable to the negligence of fellow servants in the use of a safe appliance. The evidence does not disclose any negligence on the part of the steamship company.

The decree of the District Court is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

FONG LIM v. NAGLE, Immigration Com'r. (Circuit Court of Appeals, Ninth Circuit. January 5, 1925.)

Aliens

No. 4264.

32 (8)-Evidence held to sustain finding excluded Chinese person was over 16 years of age at time of hearing.

Where all witnesses except physicians certifying in behalf of excluded Chinese person were of opinion that he was from 4 to 10 years older than he claimed. held, that this was sufficient to sustain finding that he was over 16 years of age at time of hearing before board of special inquiry.

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

the Northern District of California.

Petition for habeas corpus by Fong Lim against John D. Nagle, as Commissioner of Immigration of the Port of San Francisco. From an order denying the writ, petitioner appeals. Affirmed.

Geo. A. McGowan, of San Francisco, Cal., for appellant..

Sterling Carr, U. S. Atty., and T. J. Sheridan, Asst. U. S. Atty., both of San Francisco, Cal., for appellee.

Before GILBERT, HUNT, and RUDKIN, Circuit Judges.

RUDKIN, Circuit Judge. On April 19, 1923, the appellant applied to enter the United States at the port of San Francisco as the foreign-born son of Fong Kim, a native-born citizen of the United States. His application was denied by the Department of Labor, and a petition for a writ of habeas corpus in his behalf was likewise denied. From the latter order this appeal is prosecuted.

The principal controversy in the case was over the age of the appellant. He claimed that he was born on the 23d of August, 1907, and was therefore under 16 years of age at the date of the hearing before the board of special inquiry. If he was the son of Fong Kim, as claimed, he was necessarily of approximately that age, because of the date of his father's visit to China. The surgeon connected with the United States Public Health Service at Angel Island was of opinion that the appellant was within 2 years either way of 20 years of age; one of the inspectors placed his age at not less than 22; another at from 20 to 22; another at 25; another at from 24 to 27; and still another at 24. On the other hand, three physicians in private practice certified that they found nothing in the appearance of the appellant to impair the credibility of his claim as to age.

The chief reliance of the appellant is on the decision of this court in Woo Hoo v. White, 243 F. 541, 156 C. C. A. 236, where it was held that the certificate of two surgeons, based upon the general appearance of an applicant who claimed to be 20 years of age, was of little, if any, probative value to show a difference in age of only 2 years. The diversity of opinion in this case demonstrates the correctness of the views there expressed, but a far greater discrepancy is here shown. All the witnesses, save the three physicians who certified on behalf of the appellant, were of opinion that he was from 4 to 10 years older than claimed, and in view of the fact that he claimed to be under the age of 16 years it cannot be said that the excluding decision is not supported by competent testimony. Ark Foo v. United States, 128 F. 697, 63 C. C. A. 249; United States v. Tod (C. C. A.) 290 F. 689; Wong

The infringement claimed is in the use of the word "lemon" or the likeness of a lemon.

Fook Ngoey v. Nagle (C. C. A.) 300 F. 324.

and the use of the word "lemon" with the

45

1158 45 sup Ct. 509.

CITRUS SOAP CO. OF CALIFORNIA v ROYAL LEMON PRODUCTS CO. et al. (Circuit Court of Appeals, Eighth Circuit. De. cember 10, 1924.)

No. 6640.

Trade-marks and trade-names and unfair competition 70(1)-Trade-marks for washing powder held not infringed.

The fact that a lemon product is a constituent element of a washing powder does not give the maker the right to prevent another manufacturer, who also uses a lemon product, from stressing that fact to the public by the marks on his packages; but all he can ask is that the particular device used by him to desig; nate his goods shall not be so closely simulated as to cause confusion in the minds of ordinary purchasers.

Appeal from the District Court of the United States for the District of Minnesota; John F. McGee, Judge.

Suit in equity by the Citrus Soap Company of California against the Royal Lemon Products Company and others. From an order denying preliminary injunction, complainant appeals. Affirmed.

H. J. Bischoff, of San Diego, Cal. (Louis S. Headley, of St. Paul, Minn., on the brief), for appellant.

A. C. Paul, of Minneapolis, Minn. (Richard Paul and Maurice M. Moore, both of Minneapolis, Minn., on the brief), for appellees.

in the two packages. In very small type on each package is the information that one of the constituents of the powder is from the lemon. No one familiar with the appearance of one of the packages would ever mistake the other for it. The only possibility of confusion in the public mind concerning the two packages of powder would be through the thought of lemon. Obviously the fact that a lemon product is a constituent element in a washing powder cannot be taken advantage of and monopolized to the extent that no other maker of such powders, who, also, uses lemon product, can be prevented from stressing that fact to the public. If the only or main practical effect of the trade-mark of the appellant has been to identify his product with the thought of a lemon, then his exclusive trade-mark monopoly is narrower than that effect. He cannot prevent others who do use a lemon product from so stating and so stressing. he can ask is that the particular device used by him to designate his goods shall not be so closely simulated as to cause confusion in the mind of the ordinary purchaser of such products.

The decree should be and is affirmed.

All

BOATMEN'S BANK v. ATCHISON, T. & S. F. RY. CO.*

STONE, Circuit Judge. From denial of injunction to prevent claimed infringement of trade-marks, this appeal is brought.

The trade-marks relate to washing powders in which one of the elements is a product from the lemon. The trade-marks are "a lemon supported on a twig and accompanied by leaves, and having the word 'citrus' printed on the lemon" and a "representation of a lemon." The mark on appellees' goods is a combination of the letters R and L within blue circles on a yellow background supported by clusters of lemons and leaves, below which in white letters on a blue ground, are the words "Royal Lemon." On the top and bottom of the cartons of appellees is the RL device with clusters of lemons.

cember 5, 1924.)

No. 6532.

Appeal and error 353, 354-Time for filing writ of error cannot be extended by nunc pro tunc order or by consent.

The trial court is without power by a nune pro tune order to extend the statutory time for filing a petition for writ of error and assignment of errors with the clerk, nor can it be extended by consent.

In Error to the District Court of the United States for the Eastern District of Missouri; Charles B. Faris, Judge.

Action at law by the Boatmen's Bank against the Atchison, Topeka & Santa Fé Railway Company. Judgment for defendant, and plaintiff brings error. Dismissed.

J. L. London and Walter H. Saunders, both of St. Louis, Mo. (Sears Lehmann, Leahy, Saunders & Walther, and Lehmann

*Rehearing denied February 5, 1925.

SEL v. SAME. TANSEY

v. SAME.

cember 2, 1924.)

Before STONE and KENYON, Circuit Judges, and KENNEDY, District Judge.

STONE, Circuit Judge. This is a writ of error from a judgment on verdict in favor of defendant in a suit upon a warranty. The judgment was entered February 1, 1923. A motion for new trial was overruled March 5, 1923. The time for suing out writ of error expired September 4, 1923. The petition for writ of error, the assignment of errors and the bond thereon were all filed upon October 17. The filing mark on all of these papers was "Filed Oct. 17th, 1923, nunc pro tunc as of Sept. 4th, 1923." Upon October 17, 1923, an order allowing the writ was made, the record entry being as follows: "And thereafter, to wit: On October 17, 1923, nune pro tunc as of September 4, 1923, the following among other proceedings were had and appear of record in said cause, to wit: Order allowing writ of error, etc., September 4, 1923."

The writ of error is witnessed as follows: "Witness, the Honorable C. B. Faris, Judge of the District Courts of the United States within and for the Eastern District of Mis

souri, this 16th day of October, in the year of our Lord one thousand nine hundred and twenty-three, but same is allowed nunc pro tunc, as of the 4th day of September, 1923, as per stipulation filed herein."

From the foregoing, it is clear that this court has no jurisdiction of this writ of error unless the trial court has power through a nunc pro tunc order to extend statutory time for filing with the clerk of the trial court the petition for a writ and the assignment of errors. This time cannot be extended by consent. Clark v. Doerr, 143 F. 960, 75 C. C. A. 146 (5th C. C. A.). Hence, the stipulation upon which the nunc pro tunc order seems to have been based can be of no avail. That such time cannot be extended by nune pro tunc order is directly held in Credit Co. v. Ark. Central Ry. Co., 128 U. S. 258, 9 S. Ct. 107, 32 L. Ed. 448. And this decision has been further approved in Old Nick Williams Co. v. United States, 215 U. S. 541, 544, 30 S. Ct. 221, 54 L. Ed. 318.

For want of jurisdiction, the writ of error should be and is dismissed.

Nos. 4116-4118.

1086 (14),

1. Criminal law 1186(4)Amendment authorizing reversal for miscarriage of justice held not to obviate necessity of rulings by trial court on questions raised. The appellate court reverses convictions through sole dependence on Judicial Code, § 269, as amended (Comp. St. Ann. Supp. 1919, § 1246), only where plain and vital error appears such a case a contention that acquittal should indicating miscarriage of justice, and except in have been directed is not tenable, where record shows no motion for directed verdict, nor any objection or exception raising that point. 2. Conspiracy 45-Evidence of other acts tending to show conspiracy admissible.

Evidence of any act tending to show conspiracy is relevant in prosecution for conspiracy, though only one act be alleged. 3. Criminal law 1159(2)-Appellate court will not review weight of evidence.

of the evidence on which conviction for conAppellate court will not review the weight spiracy was had.

In Error to the District Court of the United States for the Western Division of the Southern District of Ohio; Smith Hickenlooper, Judge.

Ella Westfall, Jessie Mersel, and Nettie Tansey were convicted of conspiracy, and they severally bring error. Judgments affirmed.

Hugh Nichols, of Cincinnati, Ohio (Nichols, Morrill, Stewart & Ginter, of Cincinnati, Ohio, on the brief), for plaintiffs in

error.

A. Lee Beatty, Asst. U. S. Atty., of Cincinnati, Ohio (Harry A. Abrams, of Cincinnati, Ohio, on the brief), for the United

States.

Before DENISON, MACK, and DONAHUE, Circuit Judges.

PER CURIAM. Complaint is made that, in this prosecution for conspiracy, evidence was received of overt acts other than those specified in the indictment. The record shows no objection or exception.

[1] We are also told that for lack of necessary proof a verdict of acquittal should have been directed; but, again, the record shows no motion for a directed verdict, nor any objection or exception raising that point. It is the settled rule in this court that section 269 of the Judicial Code, as amended (Comp. St. Ann. Supp. 1919, § 1246), was not intended to promote reversals by removing the necessity for any ruling

POWE v. UNITED STATES.

that he probably would be indicted. Even

cember 12, 1924.)

No. 4399.

months before filing his plea in abatement. We are of opinion that the irregularities complained of should have been raised be

Indictment and information

196(3)-Plea

indictment, filed three months after indictment returned, held too late.

Plea in abatement, alleging irregularities in finding indictment, held too late, where accused was arrested in May, 1923, and indicted in December, and plea was filed in March, 1924, though he was not placed under bond, since he was chargeable with knowledge that he probably would be indicted, and should have complained of irregularities before indictment was returned.

In Error to the District Court of the United States for the Southern District of Alabama; Robert T. Ervin, Judge.

Samuel Powe, alias Sam Powe, was indicted for illegal possession and transportation of intoxicating liquor, in violation of the National Prohibiton Law. Plea in abatement overruled, and defendant brings error. Affirmed.

Alexander D. Pitts, of Selma, Ala., and Jere Austill, of Mobile, Ala., for plaintiff

in error.

Aubrey Boyles and Joseph W. John, Asst. U. S. Attys., both of Mobile, Ala. (Nicholas E. Stallworth, Sp. Asst. Atty. Gen., on the brief), for the United States. Before WALKER and BRYAN, Circuit Judges, and ESTES, District Judge.

BRYAN, Circuit Judge. The assignment of error relied on is that the trial court erred in overruling plaintiff in error's plea in abatement to an indictment charging him with the illegal possession and transportation of intoxicating liquor in violation of the National Prohibition Law (Comp. St. Ann. Supp. 1923, § 101384 et seq.). The plea in abatement sets up mere irregularities in the finding of the indictment, and that the plaintiff in error was not under bond to await the action of the grand jury, and therefore was not required to appear and challenge the proceedings before the grand jury.

Plaintiff in error was arrested in May, 1923, and a grand jury was impaneled November 26. Additional grand jurors were sworn in to take the place of some discharged on December 13. The indictment was returned December 15. The plea in abatement was not filed until March 19, 1924. Plaintiff in error, having been arrested, although the plea alleges he was not placed under bond, is chargeable with knowledge

that the filing of the plea in abatement was delayed too long after the finding of the indictment. Agnew v. United States, 165 U. S. 36, text 44, 45, 17 S. Ct. 235, 41 L. Ed. 624.

The judgment is affirmed.

In Error to the District Court of the

United States for the Southern Division of the Northern District of California; Ben

jamin F. Bledsoe, Judge.

Pete Lucis was convicted of violating the National Prohibition Act, and he brings error. Affirmed.

George D. Collins, Jr., of San Francisco, Cal., for plaintiff in error.

Sterling Carr, U. S. Atty., and T. J. Sheridan, Asst. U. S. Atty., both of San Francisco, Cal.

Before GILBERT, HUNT, and RUDKIN, Circuit Judges.

RUDKIN, Circuit Judge. This is a writ of error to review a judgment of conviction under the National Prohibition Act ( (Comp. St. Ann. Supp. 1923, § 101384 et seq.). The only assignment of error is the general one that the court erred in rendering judgment against the plaintiff in error. Under this assignment it is urged that there was no proof of venue, and that the evidence is not sufficient to support the charges contained in the information. These questions were not raised in the court below by motion for a directed verdict or otherwise, and they cannot be raised in this court for the first time. While the bill of exceptions contains no proof of venue, there was nothing