putting the burden on the prosecution to prove beyond a reasonable doubt that defendant did the acts alleged against him. The jurors could not have misunderstood that portion of the charge saying that it was the duty of the jurors and the court to see to the enforcement of the statute, for the court added that no prejudice for or against the law should interfere with giving the defendant and the government a fair trial. The expression of confidence that the jury would do its duty in the case was entirely free of intimation that the way to do their duty was to convict. The court expressed no opinion upon the facts, and we find no error in the statement of the principles of law applicable to the evidence. The judgment is affirmed. LIST v. NEW YORK CENT. R. CO. which, under the laws of Massachusetts, the master is made responsible for the negligent acts of his servants within the scope of their employment. At the close of the plaintiff's evidence a verdict was directed for the defendant, upon which judgment was entered. This is the error complained of. There is no question but that it could have been found that the plaintiff was injured, and that her injury was due to the negligent act of the defendant's servant. The only question is whether there was evidence from which it could have been found that the servant, at the time in question, was acting within the scope of his employment. The plaintiff's evidence tended to prove that, at the time she sustained her injury, she was at work for the defendant in one of the rooms set apart for auditing its freight accounts; that her duties consisted in operating machines for punching and tabulating cards; that there were also employed in the same room five other girls and two men, Mr. Fitzgerald and Mr. Roberts; that (Circuit Court of Appeals, First Circuit. in the room there were four desks, four January 7, 1925.) Master and servant 287 (3)-Whether employee, injuring coemployee, was acting within scope of employment, held for jury. In action under Massachusetts law for in juries to employee, struck by waste thrown by other employee in direction of waste basket, question whether other employee was acting within scope of his employment held for jury. Johnson, Circuit Judge, dissenting. In Error to the District Court of the United States for the District of Massachusetts; Peters, Judge. tabulating machines, two large card-sorting machines, and a large oblong table that Fitzgerald and Roberts worked at; that Fitzgerald was in charge of the room and directed the work there carried on; that Mr. Roberts' duties consisted in doing tabulating work, assisting Mr. Fitzgerald, and in tidying the room; that it was customary for him to keep the tables and desks in order; that the work was of such a character as to produce waste material and refuse, most of which came from the punching and tabulating machines; that eight or ten waste baskets were provided for the purpose of taking care of the refuse and waste material, one of which was supposed to be at each punching machine; that it had been customary for some time prior to the accident for some of the girls to eat their noon luncheon in the room; that it was advantageous to the conduct of work of the nature there carried on that the desks and table be kept clean and free from refuse; that on the day of the accident some of the girls took their luncheon in this room, but the plaintiff went out to her noonday meal; that thereafter she returned and resumed her work, and between 2:30 and 3 o'clock was Before BINGHAM, JOHNSON, and AN- sitting at a tabulating machine at the rear DERSON, Circuit Judges. Action by Marie V. List against the New York Central Railroad Company. Judgment for defendant, and plaintiff brings erJudgment vacated, verdict set aside, and case remanded, with directions. ror. Leo J. Kelly, of Boston, Mass., and Christopher J. Muldoon, Jr., of Somerville, Mass. (John J. O'Hare and Kelly & Schumb, all of Boston, Mass., on the brief), for plaintiff in error. the Ralph A. Stewart, of Boston, Mass. (Herbert Schnare, of Boston, Mass., on brief), for defendant in error. BINGHAM, Circuit Judge. This is a writ of error from a judgment in favor of the defendant in a personal injury suit, in end of the room, engaged in her regular work; that about this time Fitzgerald and Roberts came into the room, and Fitzgerald, seeing that there was some orange peel, papers, an orange, and other waste material 3 F.(2d) 435 on the long table, which had been left there R. W. Bishop, of Washington, D. C. (A. by the girls after their noon lunch, directed B. Lacey and S. N. Acker, both of WashRoberts to clean up the table and remove ington, D. C., on the brief), for appellant. the waste; that Roberts rolled up some of Frederick S. Stitt, of Washington, D. the material in a paper and threw it in the C., for appellee. direction of a waste basket back of where the plaintiff was sitting; that the bundle missed the basket; that Roberts then picked up the orange and threw it in the direction of the same basket; and that, instead of going into the waste basket, it struck the plaintiff, causing the injury complained of. From this evidence the jury, as reasonable men, might find that Fitzgerald had charge of the room, with authority to keep it in order; that it was advantageous to the work there being conducted that the desks and tables be kept cleared of waste; that Fitzgerald, in directing Roberts to clear away the waste, was acting within the scope of his authority; and that Roberts, in clearing it away, was not only performing his duty as directed, but that, had he not been acting at the time under the immediate direction of Fitzgerald, he could have been found to have been acting within the scope of his employment, as he was only performing a duty which he had customarily performed in the defendant's service. The judgment of the District Court is vacated, the verdict is set aside, and the case is remanded to that court for further proceedings not inconsistent with this opinion, with costs to the plaintiff in error. JOHNSON, Circuit Judge, dissents. AMERICAN MINE DOOR CO. v. NEWBERRY. (Circuit Court of Appeals, Fourth Circuit. January 27, 1925.) No. 2286. Patents 328-1,304,534, for improving cable splice, held invalid for anticipation. Bowman patent, No. 1,304,534, for an improved cable splice for connecting cables, held invalid as anticipated in prior art. Appeal from the District Court of the United States for the Southern District of West Virginia, at Huntington; George W. McClintic, Judge. Patent infringement suit by the American Mine Door Company, a corporation, against John A. Newberry. From a decree dismissing his bill, the plaintiff appeals. Affirmed. Before WOODS, WADDILL, and ROSE, Circuit Judges. ROSE, Circuit Judge. The parties here occupy the same position they did below; that is to say, the appellant, the American Mine Door Company, who is the owner of letters patent No. 1,304,534, issued May 27, 1919, to one Bowman, alleging infringement by the defendant, Newberry, the appellee here, filed against him a bill for an injunction and accounting. The defendant set up the usual defenses of nonvalidity and noninfringement. After hearing, the learned judge below dismissed the bill. splice "for connecting cables or like eleThe patent was for an improved cable splice "for connecting cables or like elements." It is formed by bending around the cable to be spliced a single piece of diamond shaped or trapezoidal sheet metal; the opposite projecting ends of the diamond, called by the patentee spurs, having a beveled edge adapted to mate each with the other. Such a splice, by pressure readily applicable, may be clamped as tightly as desired around the cable or other article, the ends of which are to be held together, and within quite appreciable limits independently of the thickness of the cable upon which it is to be used. It will fit so snugly upon the cable that, when covered by insulating material, it will be no obstacle to the winding up of the cable upon an automatic reel, and there will be no appreciable projections to catch around corners or pillars in a mine. It was primarily designed for use in connection with cables carrying the electric current to mine motors, and the testimony shows that for that purpose it is cheap, readily applied, and effective, and that there is quite a fair demand for it. It is not questioned that the prior art discloses a number of devices which very closely resemble the patent in suit, but it is said they were not intended for use with cables in carrying electric current in mines and were never so used. They were to be applied to crinoline wires, to well ropes or cables, or when designed, as some of them had been, for attaching wires or cables to portions of electric machines, the portions of them resembling the patented device formed an integral part of the whole, which could not without mutilation be made to plication on the ground that there appeared to serve the purpose of plaintiff's splice. It is said that all the uses shown were in arts which were not related to the operation of electric motors in mines, and that it sometimes requires as acute a perception of the relation between cause and effect, and as much of the peculiar intuitive genius which is characteristic of great inventors, to grasp the idea that a device used in one art may be made available in another as would be necessary to create the device de Potts & Co. v. Creager, 155 U. S. 600, 15 S. Ct. 194, 39 L. Ed. 275. novo. In the instant case it is argued that is precisely what was done. We think that this contention rests upon a misconception of the art to which the patented device belongs, which is that of splicing or "connecting cables or like elements." It operates independently of the use to which the thing spliced has been or is to be applied. It is true that a splice for mine cables must be tight, fit snugly, and make a strong joint, but all of these are at least desirable qualities wherever splices are used. Any one of them may be essential in other places than mines, and in connection with other things than electrically operated mine motors, and, what is more to the point, must have been possessed by some of the devices in the prior art. The art or mystery of the undertaker and of the fresh fish vendor are not related, but a device for preserving human bodies may anticipate another intended to keep fish from spoiling, because the common purpose of each is to retard the decay of animal tissues. Brown v. Piper, 91 U. S. 37, 23 L. Ed. 200. be no present ability on part of president to he had spent money for living expenses. pay merely on affidavit of president's wife that 2. Bankruptcy 136(1)-Bankrupt or officer may be ordered, under penalty of contempt, to turn over property of bankrupt. A bankrupt or the officer of a corporate bankrupt may be ordered, under penalty of contempt, to turn over property of estate in his possession or under his control. 3. Bankruptcy 136 (2)-"Due hearing" defined. bankrupt or officer of bankrupt corporation to "Due hearing," on application to require turn over property, implies a statement by the plaintiff and an answer by the defendant, and an issue framed by what are practically pleadings as basis for a trial, at which each party is entitled to examine the other as well as to introduce witnesses. Petition to Revise Order of the District Court of the United States for the Southern District of New York. In the matter of Harry L Sugarman, Inc., bankrupt. On petition of Israel H. Zinovay to revise order of District Court, denying application to require president of bankrupt corporation to turn over to the receiver corporation's deposits, withdrawn from bank four days before bankruptcy. Order reversed, with directions. David Haar, of New York City, for petitioner. Foster, La Guardia & Cutler, of New York City (A. S. Cutler and Nelson K. Scherer, both of New York City, of counsel), for respondent. Before HOUGH and MANTON, Circuit Judges, and LEARNED HAND, District It follows that the decree below was Judge. right, and is affirmed. In re HARRY L. SUGARMAN, Inc. Petition of ZINOVAY. (Circuit Court of Appeals, Second Circuit. November 21, 1924.) No. 88. 1. Bankruptcy 114(2)-Denial of application for order requiring president of bankrupt corporation to pay over corporation's funds on affidavit of president's wife, held error. On application by receiver of bankrupt corporation for order requiring president to pay over corporation's funds, to which the president did not answer, it was error to deny ap PER CURIAM. Petition for adjudication was filed against this corporation, of which the man Sugarman was president. A receiver was appointed, who made application for a summary order against Sugarman, alleging in substance that some four days before bankruptcy he had drawn out of bank all the corporation's cash under pretense of applying the same to various uses which the receiver deemed unlawful, even if any application of the money was ever made other than Sugarman's keeping it. The petition concluded in common form with a prayer for payment or "such other and further relief" as might be proper. Sugarman never answered, but his wife filed her own affidavit, stating in substance that her husband had taken the money and 3 F.(2d) 437 spent it for living expenses, whereupon the court denied the application without further investigation, "on the ground that there appears to be no present ability on the part" of Sugarman to pay. [1,2] This was error of law. Receiver had invoked the established principle that a bankrupt or the officer of a corporate bankrupt may be ordered under penalty of contempt to turn over property of the estate in his possession or under his control. Rem. § 2381 et seq. The leading case in this circuit is In re Schlesinger, 102 F. 117, 42 C. C. A. 207, where it was pointed out that the order should be made, or denied, "after due hearing." See, also, Re Graning, 229 F. 370, 143 C. C. A. 490, Ann. Cas. 1917B, 1094, for a more recent statement of principle. [3] Due hearing implies a statement by the party plaintiff and an answer by the person defendant; while the procedure is informal, there must be an issue framed by what are practically pleadings; on those pleadings a trial is based, and at such trial each party is entitled to examine the other, as well as to introduce witnesses. It may turn out that what Mrs. Sugarman says is the story of the money taken by her husband is true, but to permit her to save the real defendant even from an swering, not to speak of examination by counsel, is no more proper in bankruptcy than it would be at law, had the trustee sued Sugarman for this same money. In sum, the proceedings below were not "due," therefore they were erroneous, and so was the order under review. Our mandate will reverse the order, and direct the lower court to require Sugarman to answer. The issue being thus framed, trial will be had either in open court or by reference as may be most convenient. The petitioner is awarded costs. In re JAMES A. BRADY FOUNDRY CO. (Circuit Court of Appeals, Seventh Circuit. 1. Bankruptcy 319-Judgment rendered after bankruptcy not a provable claim. A judgment rendered against the bankrupt by default after bankruptcy is not provable against the estate, over objection of the trustee, without inquiry into the merits of the claim. 2. Bankruptcy 339-Trustee held not precluded from contesting claim on judgment by moving to set it aside. Trustee held not precluded from contesting the allowance of a judgment rendered against bankrupt after bankruptcy as a claim against the estate, because he appeared after the judgment was rendered and moved to set it aside. Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois. In the Matter of the James A. Brady Foundry Company, bankrupt; Joseph E. Carl Heim appeals Lindquist, trustee. from an order disallowing his claim, founded on a judgment. Affirmed, with leave to present the claim on the merits. Frank P. A'Brunswick, of Chicago, Ill., for appellant. Gilbert F. Wagner, of Chicago, Ill., for appellee. Before ALSCHULER, EVANS, and PAGE, Circuit Judges. Bank ALSCHULER, Circuit Judge. rupt's voluntary petition was filed April 13, 1923. Adjudication followed shortly thereafter, and appellant presented a claim against the estate for $7,000 and interest, exhibiting as evidence a certified copy of a judgment in his favor rendered in the superior court of Cook county against bankrupt May 5, 1923, which was a few days after the appointment of a trustee for the The trustee objected to bankrupt estate. the claim, contending that the judgment is void, and denying any indebtedness. [1] The judgment on its face purports to have been entered by default, and appellant, although given opportunity by the referee, declined to present evidence upon the merits of his claim, relying wholly upon the judgment. The referee disallowed the claim, and his action was confirmed by the District Court. [2] Appellant contends that the trustee is precluded from questioning the judgment, because he became a party to the state court litigation, in that upon learning of the entry of the judgment he appeared in the court and moved to set it aside. He did make such motion, which that court denied for reason not appearing, but presumably because made after the court had lost jurisdiction of the case through expiration of the term of court at which the judgment was rendered. Counsel contend that this was not the reason, because he says the motion was to correct errors of fact, as provided for by the Practice Act of Illinois as a substitute for the common-law writ of error coram nobis. Section 89, c. 110, Rev. Stats. Ill. We find nothing in the record to indicate that the motion was of this nature; but, if it were, we do not think it would make any difference, since it is apparent that whatever the nature of the trustee's motion, or the court's reason for denying it, the merits of the case had not been in any way inquired into. It does not appear that either party in the proceedings below "dotted the i's" or "crossed the t's." Sufficient appears, however, to indicate that the trustee maintained there was no indebtedness due from the bankrupt to the claimant, and we hold this was a matter to be inquired into upon the hearing of the claim, and that the action of the District Court was proper. It may be assumed that in good faith appellant relied upon the absolute incontestability of his judgment, and we are disposed to accord him further opportunity to undertake establishment of his claim on its merits. The cause is remanded to the District Court, with direction to the referee to hear the claim upon its merits apart from the judgment itself, and to fix early date for such hearing; costs of this appeal to be taxed against appellant. appeal and petitions by the Standard Oil Company, by the United States, and by the Commercial Credit Company to superintend and revise decrees rendered in 3 F.(2d) 311, 3 F. (2d) 309, and 289 F. 145. Decrees affirmed, and petitions to revise dismissed. F. R. Conway, Admiralty Atty. U. S. Shipping Board, of Washington, D. C. (A. W. W. Woodcock, U. S. Atty., of Baltimore, Md., on the brief), for the United States. Malcolm H. Lauchheimer and John H. Skeen, both of Baltimore, Md. (Sylvan Hayes Lauchheimer, of Baltimore, Md., on the brief), for Commercial Credit Co. Hugh H. Obear, of Washington, D. C. (Douglas, Obear & Douglas, of Washington, D. C., on the brief), for International Finance Corporation. George De Forest Lord, of New York City (Lord, Day & Lord, of New York City, on the brief), for John J. Orr & Son. George W. P. Whip, of Baltimore, Md. (Pillsbury, Madison & Sutro, of San Francisco, Cal., and Lord & Whip, of Baltimore, Md., on the brief), for Standard Oil Co. Before WOODS and WADDILL, Circuit Judges, and COCHRAN, District Judge. WOODS, Circuit Judge. These appeals. and petitions to superintend and revise raise difficult questions, some of them not well covered by authority. Strong argument has been adduced against some of the conclusions of the District Court (287 F. 714; STANDARD OIL CO. v. MILLER et al. 289 F. 145), but after much consideration UNITED STATES v. SAME. COM- (Circuit Court of Appeals, Fourth Circuit. Nos. 2253 and 2287; 2255 and 2288; 2256 and 2289. Bankruptcy468-Inadvertence in drawing decree of District Court may be corrected by agreement before entry of formal decree of Circuit Court of Appeals. Inadvertence in drawing decree of District Court may be corrected by agreement before entry of formal decree of Circuit Court of Appeals. On Petitions to Superintend and Revise and on Appeals from the District Court of the United States for the District of Maryland, at Baltimore, in Bankruptcy; John C. Rose, Judge. In the matter of the Atlantic Gulf & Pacific Steamship Corporation, bankrupt. On we are convinced they are sound in reason and sustained by authority. The view expressed in the opinion of the District Court in 289 F. 145, that an ordinary debt of the United States is entitled to preference in the distribution of the assets of a bankrupt, has been held by this court to be incorrect in Davis, Federal Agent, v. Pringle, Trustee, 1 F.(2d) 860, decided September 29, 1924, but that error does not affect the correctness of the conclusions of the court, as there was no debt due the United States. It is suggested in the argument on behalf of the Standard Oil Company that the formal decree adjudicating its rights by inadvertence does not accord with the opinions of the District Court above referred to, and that articles 1, 9, 11, and 12 of the decree are inconsistent. The alleged mistake was not referred to in the arguments of other claimants. If there was an inadvertence in |