And after referring to certain of its preceding decisions, the court proceeded as follows:

"After a somewhat extended and very careful examination of the record in this case, we are convinced that justice demands, and the record justifies, the granting of a new trial to the extent and for the purpose of determining the question as to the duty of water on the two classes of lands mentioned in this decree. For this purpose the court can hear the evidence of persons who are competent to testify on the subject and who can do so, not from guesswork or hearsay, but from actual measurements and tests and applications of the water to the lands irrigated under these appropriations. A new trial for this purpose can do no harm or injustice to any one, and, on the other hand, if it should be found that even a very slight increase in the duty of water per acre can be had, it will, in the aggregate, amount to several thousand additional acres of land that may be irrigated. In determining the duty of water, reference should always be had to lands that have been prepared and reduced to a reasonably good condition for irrigation. Economy must be required and demanded in the use and application of water. Water users should not be allowed an excessive quantity of water to compensate for and counterbalance their neglect or indolence in the preparation of their lands for the successful and economical application of the water. One farmer, although he has a superior water right, should not be allowed to waste enough water in the irrigation of his land to supply bath him and his neighbor simply because his land is not adequately prepared for the economical application of the water." In reversing the order appealed from the court further said: "A new trial will be granted for the sole and only purpose of determining the duty of water on the two classes of lands involved in this action, namely, bench and bottom lands. This order for a new trial will also cover and include the question of the duty of water under allotments numbered 2 and 30, being the appropriations for the Jacobs Canal Company, Limited, and the Joseph Perrault and R. Z. Johnson canal, dating from May 1, 1866. The question as to the duty of water under those ditches and appropriations will be retried. On a retrial the court will hear such competent evidence as may be produced, touching the duty of water to be applied to lands in Boise Valley and lying under the various canals taking water from the Boise river. The court in its decree should also determine and decree what lands are bench and what bottom lands. In the event the court, after hearing the evidence, should determine upon fixing a higher duty for water than allowed by the former findings and decree, and to therefore reduce the amount per acre, it will modify the findings and decree as to each appropriator in proportion as it reduces the quantity per acre below that fixed in the former decree."

The mere reading of the foregoing opinions makes clear, we think, that while the Supreme Court of Idaho affirmed the judgment of the lower court in so far as it fixed and adjudged the respective dates of the appropriations of the 134 prior appropriators of the waters of Boise river who were parties to the suit, it vacated the judgment of the court below in so far as it fixed and adjudged the amount of the water of the river which the respective prior appropriators are entitled to divert and use, and remanded the cause for a new trial of that question.

It being conceded that such new trial has not been had, and there being no decision of any court adjudging the amount of the waters in question which the respective prior appropriators are entitled to divert and use, we regard it as clear that the appellants were without authority to enter upon the property of the appellee, break the locks of its headgates, and undertake to determine the amount of the waters in question to which that appropriator was entitled, and that for the

damages resulting from those unlawful acts the learned judge of the court below rightly gave the appellee judgment, with costs. The judgment is affirmed.

MEMORANDUM DECISIONS.

(236 Fed. 1018)

ATLANTIC COAST LINE R. CO. v. RUTLAND. (Circuit Court of Appeals, Fifth Circuit. October 25, 1916.) No. 2950. In Error to the District Court of the United States for the Southern District of Georgia; Emory Speer, Judge. Stanley S. Bennet and L. W. Branch, both of Quitman, Ga., for plaintiff in error. Claude Payton, of Atlanta, Ga., for defendant in error. Before PARDEE and WALKER, Circuit Judges, and GRUBB, District Judge.

PER CURIAM. We find none of the assignments of error well taken. Judgment affirmed.

(236 Fed. 1018)

In re BARNETT. BALBACH v. SURPRISE. (Circuit Court of Appeals. Seventh Circuit. May 23, 1916. Rehearing Denied July 18, 1916.) No. 2321. Appeal from the District Court of the United States for the District of Indiana. In the matter of the bankruptcy of Max Barnett. Proceeding between Paul A. Balbach and Charles L. Surprise, trustee. From an order of the referee, affirmed by the District Court, Paul A. Balbach appeals. Affirmed. Frank P. A. Brunswick, of Chicago, Ill., for appellant. Louis Dulsky, of Chicago, Ill., for appellee. Before KOHLSAAT, MACK, and ALSCHULER, Circuit Judges.

PER CURIAM. The only substantial question involved in the case is whether or not the evidence justified the conclusion of facts, made by the referee and affirmed by the trial judge, that both parties intended, not an actual business transaction, a delivery of the grains bought and sold at the future time designated for delivery, but only a settlement of the difference between the contract price and the market price at the time fixed for delivery. From an examination of the evidence we are satisfied that the conclusion reached by the referee and affirmed by the District Court was proper. The order is therefore affirmed.

(236 Fed. 1019)

In re KUPFER CORPORATION. (Circuit Court of Appeals, Ninth Circuit. October 11, 1916.) No. 2844. Petition to Revise Certain Orders of the District Court of the United States for the Southern Division of the Southern District of California. H. Broadshaw Birchby and Herbert Cutler Brown, both of Los Angeles, Cal., for petitioner.

PER CURIAM. The above-entitled matter came on to be heard on the said petition for revision, and it appearing that the petitioner herein has failed to comply with the provisions of rules 23 and 24 of the rules of practice of this court (231 Fed. v, vi, 144 C. C. A. v, vi), in that the petition has not been printed as required by said rule 23, and it further appearing to the court that counsel for the petitioner has failed to file with the clerk of this court a printed brief at least 15 days before the matter was called for argument, as required by said rule 24, and that, according to this rule, the petitioner is in default, and that as prescribed by section 5 thereof the case may be dismissed, on consideration whereof, it is now here ordered and adjudged by this court that the petition for revision in this matter be and hereby is dismissed, for

the noncompliance by the petitioner with the provisions of rules 23 and 24 of the rules of practice of this court. It is further ordered and adjudged by this court that the respondent recover against the petitioner for its costs herein expended and have execution therefor.

(236 Fed. 1019)

LEE LING HING v. UNITED STATES. (Circuit Court of Appeals, Ninth Circuit. October 3, 1916.) No. 2863. In Error to the District Court of the United States for the Southern Division of the Southern District of California. Albert Schoonover, U. S. Atty., and J. Robert O'Connor, Asst. U. S. Atty., both of Los Angeles, Cal.

PER CURIAM. This cause came on regularly to be heard on the motion of counsel for the defendant in error to dismiss the writ of error therein for the noncompliance by the plaintiff in error with the provisions of subdivision 1 of rule 16 of the rules of practice of this court (208 Fed. ix, 124 C. C. A. ix), and was duly submitted, and it appearing to the court that the plaintiff in error has failed to file a record thereof and to docket the case by or before the return day, and has failed to comply with the said rule, and that, pursuant to the said rule, the defendant in error has docketed the case and produced and filed a certificate of the clerk of the said district court, stating the case and certifying that a writ of error therein had been duly sued out, on consideration whereof, and pursuant to the provisions of subdivision 1 of rule 16 of the rules of practice of this court, it is ordered and adjudged by this court that the said motion be and hereby is granted, and that the writ of error in this cause be and hereby is dismissed.

(236 Fed. 1019)

LUSE LAND & DEVELOPMENT CO., Limited, v. GANNON. (Circuit Court of Appeals, Eighth Circuit. October 20, 1916.) No. 4642. In Error to the District Court of the United States for the District of Minnesota; Wilbur F. Booth, Judge. Action by the Luse Land & Development Company, Limited, a corporation, against Hugh Gannon, who counterclaimed. Judgment for defendant, and plaintiff brings error. Affirmed. S. D. Catherwood, of Austin, Minn., and Charles N. Dohs, of St. Paul, Minn. (Edgerton & Dohs, of St. Paul, Minn., and Catherwood & Nicholsen, of Austin, Minn., on the brief), for plaintiff in error. W. B. Douglas, of St. Paul, Minn. (Douglas, Kennedy & Kennedy, of St. Paul, Minn., on the brief), for defendant in error. Before SMITH and CARLAND, Circuit Judges, and AMIDON, District Judge.

AMIDON, District Judge. This action was brought by the Luse Land & Development Company, Limited, as plaintiff, against Hugh Gannon, as defendant, to recover an installment due upon contracts for the purchase of seven quarter sections of land in Saskatchewan, Canada. The answer admits the liability as charged in the complaint, and sets up by way of counterclaim a cause of action for deceit in the sale of the lands, and asks judgment therefor in the sum of $24,640. The reply denies the making of the representations charged, and alleges that defendant had a full opportunity to examine the land, and in fact made such examination, and in no way relied upon any representations that were made. The issue was presented by this counterclaim and reply. Evidence was adduced by the respective parties in support of their contentions. At the conclusion of the case plaintiff moved for a directed verdict, which was denied, and the case submitted to the jury in a charge to which no exceptions have been saved. The jury returned a verdict in favor of the defendant for $2,240, for which judgment was entered. Plaintiff brings error. The error mainly relied on is the denial of the motion for a directed verdict. We have carefully examined the record, and think the ruling of the trial court was clearly right. No good purpose would be served by setting forth the evidence at length in the discussion of this pure question of fact. There are also several assignments of error based upon the recep

tion and rejection of evidence. We have also examined them with care, and do not think any error was committed. If the case were to be again tried, there would be justification in discussing each of these alleged errors in de tail; but, as that is not to occur, we do not feel called upon to extend this opinion for that purpose. The judgment is affirmed.

(236 Fed. 1020)

MOSAIC TILE CO. v. JOSEPH S. MILLER CO. Appeal of GORMAN et al. (Circuit Court of Appeals, Third Circuit. October 12, 1916.) No. 2131. Appeal from the District Court of the United States for the Eastern District of Pennsylvania; J. Whitaker Thompson, Judge. John F. Gorman, of Philadelphia, Pa., for appellant. Before BUFFINGTON, MCPHERSON, and WOOLLEY, Circuit Judges.

PER CURIAM. The only matter before us is the correctness of Judge Thompson's action in granting the restraining order of April 10, 1916; and, as we see no error in what was done, the order is now affirmed. But this is without prejudice to the right of either of the appellants to apply to the District Court for such other relief as may seem appropriate.

(236 Fed. 1020)

NEVADA NORTHERN RY. CO. v. HOUSTON. (Circuit Court of Appeals, Ninth Circuit. October 2, 1916.) No. 2826. In Error to the District Court of the United States for the District of Nevada. Chandler & Quayle, of Ely, Nev., and Curtis H. Lindley, of San Francisco, Cal., for plaintiff in error. Dixon & Miller, of Reno, Nev., for defendant in error.

PER CURIAM. This cause came on to be heard on the transcript of record from the District Court of the United States for the District of Nevada, and upon the oral motion of counsel for the plaintiff in error to dismiss the writ of error herein, and was duly submitted. On consideration whereof, it is now here ordered and adjudged by this court that the writ of error in this cause be and hereby is dismissed, with costs in favor of the defendant in error and against the plaintiff in error. It is further ordered and adjudged by this court that the defendant in error recover against the plaintiff in error for his costs herein expended and have execution therefor.

(236 Fed. 1020)

PECOS MERCANTILE CO. v. RAYNOLDS et al. (Circuit Court of Appeals, Fifth Circuit. November 20, 1916.) No. 2884. Appeal from the District Court of the United States for the Western District of Texas; Thos. S. Maxey, Judge. J. A. Gillett, of El Paso, Tex., for appellant. Wm. H. Burges and Robert L. Holliday, both of El Paso, Tex., for appellees. Before PARDEE and WALKER, Circuit Judges, and FOSTER, District Judge.

PER CURIAM. After a full consideration of this case, we conclude that the decree appealed from is correct, and it is therefore affirmed.

(236 Fed. 1021)

THE PRUDENCE. (Circuit Court of Appeals, Fourth Circuit. November 7, 1912.) No. 1092. Appeal from the District Court of the United States for the Eastern District of Virginia, at Norfolk. Libels by Rosa Lee Cherry, administratrix of Benjamin Luther Cherry, deceased, and by Lena E. Harper, administratrix of Lee Harper, deceased, against the steam tug Prudence. From decrees for libelants (191 Fed. 993), defendant appeals. Affirmed. Edward R. Baird, Jr., of Norfolk, Va., for appellant. Henry Bowden and E.

R. F. Wells, both of Norfolk, Va., for appellees. Before GOFF and PRITCHARD, Circuit Judges, and CONNOR, District Judge.

PER CURIAM. We reach the conclusion that the court below properly viewed the conflicting evidence on which its decree was based, and that its disposition of the case under all the circumstances attending it is without error. Affirmed.

(236 Fed. 1021)

RODEN v. DETTERING. (Circuit Court of Appeals, Ninth Circuit. September 11, 1916.) No. 2708. In Error to the District Court of the United States for the Northern Division of the Western District of Washington. Farrell, Kane & Stratton and Stanley J. Padden, all of Seattle, Wash., for plaintiff in error. Griffin & Griffin, of Seattle, Wash., for defendant in error. dered, upon due consideration, writ of error dismissed, with costs in favor of defendant in error and against plaintiff in error.

(236 Féd. 1021)

Or

SAVANNAH & N. W. RY. v. UNION TRUST CO. et al. (Circuit Court of Appeals, Fifth Circuit. November 3, 1916.) No. 2841. Appeal from the District Court of the United States for the Southern District of Georgia; W. W. Lambdin, Judge. Suit by the Union Trust Company against the Great Eastern Lumber Company, in which the Savannah & Northwestern Railway intervened. From the decree in favor of complainant, intervener appeals. Modified and affirmed. Robert M. Hitch and Remer L. Denmark, both of Savannah, Ga., for appellant. William L. Clay and Frederick T. Saussy, both of Savannah, Ga., for appellees. Before PARDEE and WALKER, Circuit Judges, and CALL, District Judge.

PER CURIAM. This is an appeal from a final decree against the Savannah & Northwestern Railway, intervener in a suit for foreclosure of mortgage on real and personal property, wherein the Union Trust Company was complainant and the Great Eastern Lumber Company was respondent. The decree appealed from is in favor of the Union Trust Company, foreclosing a certain contract of purchase by the Savannah & Northwestern Railway from the Great Eastern Lumber Company of part of the property covered by the mortgage sought to be foreclosed in the main suit. The record shows that the Union Trust Company was fully entitled to a decree of foreclosure against the Savannah & Northwestern Railway. The decree rendered in the case, however, is apparently more in the nature of a forfeiture than the foreclosure to which the Union Company was entitled, and is erroneous in that respect, and should be modified, so as to make the decree rendered read as follows: It is therefore ordered, considered, and adjudged that all the right, title, and interest of the Savannah & Northwestern Railway in the properties of the defendant under the contract of purchase referred to in said intervention, and particularly all of its right, title, and interest of, in, and to the properties, rights, and oppositions hereinbefore described in this decree, and particularly on pages 102, 103, and 104 in paragraph (b), parcel (2), are terminated and foreclosed. It is further ordered, adjudged, and decreed that unless the Savannah & Northwestern Railway, within 10 days from the date of this decree, pay the amount herein adjudged due and payable by the Savannah & Northwestern Railway, to wit, the sum of $24,238.02, with interest thereon at the rate of 7 per cent. per annum from January 1, 1915, into the registry of the court, an order of sale issue to the special master herein appointed, directing him, after due advertisement, to sell the said property, rights, and oppositions herein described, free from all and any right, equity, interest, or claim whatsoever of the Savannah & Northwestern Railway in and to the same. The proceeds of said sale to be applied to the payment of the said amount of $24,238.02, with interest thereon at the rate of 7 per cent, per annum from January 1, 1915, and all costs justly taxable against the Savannah & Northwestern Railway, and any balance to be paid to the said railway. For any deficiency judgment may be entered in favor of the receivers in this cause against