the assets and the assets themselves and used it either for their own benefit or for some one whom they selected to prefer or to be a beneficiary of it, they would be guilty in either event.”

The above-quoted instruction was not erroneous. The criminality involved in one knowingly and fraudulently concealing while a bankrupt from his trustee property belonging to his estate in bankruptcy is not purged by his using the whole or part of the concealed property for the benefit of a preferred creditor or some one else. Corenman v. United States, 188 F. 424, 110 C. C.

A. 341.

The judgment is affirmed.

all'd 268. 6799 Lich. 1153,45 Sup514

DAVIS, Agent, etc., v. DEXTER & CARPENTER, Inc.

(Circuit Court of Appeals, Fourth Circuit. September 29, 1924.)

No. 2250.

Appeal and error 1099 (10)-Judgment conforming to prior decision and remand will not

again be reviewed.

Where the appellate court, in reversing a judgment on a former writ of error, determined that plaintiff was entitled to recover the amount sued for, a judgment for plaintiff on a second trial on substantially the same evidence will not be reversed.

In Error to the District Court of the United States for the District of Maryland, at Baltimore; John C. Rose, Judge.

Action at law by Dexter & Carpenter, Inc., against James C. Davis, Agent, etc. Judgment for plaintiff, and defendant brings error. Affirmed.

See, also, 281 F. 385.

Duncan K. Brent, of Baltimore, Md. (Francis R. Cross, of Baltimore, Md., on the brief), for plaintiff in. error.

William B. Symmes, Jr., of New York City (Davis, Symmes & Schreiber, of New York City, on the brief), for defendant in

error..

Before WOODS and WADDILL, Circuit Judges, and GRONER, District Judge.

WADDILL, Circuit Judge. This is a writ of error to a judgment of the United States District Court for the District of Maryland, rendered on the 9th day of May, 1923, in favor of the defendant in error against the plaintiff in error, for $27,264.11, with interest and costs. The writ of error was sued out from the District Court direct to the Supreme Court of the United States, and by order of the latter court was transferred to this court, pursuant to the Act of Congress of September 14, 1922, c. 305, 42 Stat. 837 (Comp. St. Ann. Supp. 1923, § 1215a).

The case was heretofore before this court on a writ of error to the District Court of Maryland, challenging the correctness of the

judgment that court rendered in favor of the plaintiff in error against the defendant

in error, which latter judgment was reversed by this court on the 31st of May, 1922, a new trial awarded, and the case remanded to the District Court for retrial. 281 F. 385. Reference may be had to that decision as containing a full and accurate account of the facts and circumstances of the case, which need not be recited here. By that decision, this court concluded that the plaintiff, the defendant in error herein, was entitled to recover of the plaintiff in error the full amount of the claim sued for. At the new trial, the District Court in all respects complied with and carried out the judgment of this court, and in so doing rendered the judgment complained of in favor of the plaintiff, the defendant in error, against the plaintiff in error herein. The facts in the two trials seem not to have been material

ly different, if at all. We therefore perceive no reason for changing the views expressed in our previous opinion. 281 F. 385, supra. The view of the court was that Georgia, Florida & Alabama Railway Co. v Blish Milling Co., 241 U. S. 190, 36 Sup. Ct. 541, 60 L. Ed. 948, did not involve and did not apply to deliberate taking or confiscation of freight.

The judgment of the District Court is hereby affirmed. Affirmed.

RANTALA v. UNITED STATES. (Circuit Court of Appeals, Ninth Circuit. November 3, 1924.)

No. 4303.

Evidence

sider his conduct such as they found from the evidence it was, when the officers came in, and from all the surrounding circumstances determine whether or not he, as well as Hoiska, was interested in operating the business. We think the charge was justified

sion.

In Error to the District Court of the United States for the Northern Division of the District of Idaho; Frank S. Dietrich, Judge.

Criminal prosecution by the United States against John Rantala. Judgment of conviction, and defendant brings error. Affirmed. R. B. Norris, of St. Maries, Idaho, for plaintiff in error.

E. G. Davis, U. S. Atty., and William H. Langroise, Asst. U. S. Atty., both of Boise, Idaho.

Finding no error, the judgment is affirmed.

350-Cross-examination of defendant as to previous conviction held proper.

A defendant charged with illegal sale of liquor, who as a witness in his own behalf testified that he had never previously sold liquor unlawfully, opened the door for cross-examination as to whether he had previously been convicted of such offense.

2. Witnesses 52(7)-Wife of one of several defendants in criminal trial not competent witness.

GILBERT, Circuit Judge. The plaintiff in error was convicted under two counts of an information which charged him with the unlawful possession of intoxicating liquor and the maintenance of a nuisance. On the trial no exception was taken to any ruling of the court, and no request was made for an instructed verdict of acquittal.

It is contended that there was no legal evidence of the connection of the plaintiff in error with the pool hall and soft drink place in which the liquor was found, and reliance is placed upon the fact that the premises had been leased by the plaintiff in error to one Hoiska, as shown by a copy of the lease and receipts for rent paid by Hoiska, and licenses issued to the latter to maintain a soft drink parlor and pool tables. But there was evidence to go to the jury that the plaintiff in error was actively participating in the management of the place, that he was seen standing behind the counter, and when the officers entered with a search warrant he endeavored to destroy the evidence of the presence of intoxicating liquor. No exception was taken to the charge of the court, in which the jury were instructed that, if they found the unlawful business was being conducted on the premises of the plaintiff in error, they might con

the wife of one of several defendants on trial at the same time cannot be called as a witness for or against any of them.

Criminal prosecution by the United States against Patrick J. Liddy and Thomas King. On motions for new trial and in arrest of judgment. Denied.

George W. Coles, Dist. Atty., and Henry B. Friedman, Asst. Dist. Atty., both of Philadelphia, Pa., for the United States. Edgar W. Lank, of Philadelphia, Pa., for defendants.

THOMPSON, District Judge. The defendant Patrick J. Liddy was charged in an indictment containing five counts with violations of the National Prohibition Act.1 Count 1 charged the sale of whisky on October 23, 1923; count 2, the sale of whisky on October 24, 1923; count 3, the maintaining of a common nuisance at premises 110112 North Fifty-Sixth street, Philadelphia, a saloon where whisky was sold; count 4, the unlawful possession on October 25, 1923, of a large quantity of intoxicating liquor, namely, whisky, gin, alcohol, wine, and beer; and count 5, the maintaining of a common nuisance on October 25, 1923, at the said saloon, where whisky, gin, alcohol, wine, and beer were kept. The indictment pleaded Liddy's previous conviction in this court on June 27, 1923, upon a plea of guilty to 1 Comp. St. Ann. Supp. 1923, § 10138 et seq.

an indictment charging him with unlawfully selling intoxicating liquor and maintaining a common nuisance.

The defendant Thomas King, who was employed by Liddy as bartender, was charged in the first count with the sale of whisky on October 23, 1923, and in the second count with a similar sale on October 24, 1923. These indictments, together with an indictment charging the sale of intoxicating liquor against Theresa Liddy, the wife of the defendant, Patrick J. Liddy, were consolidated for trial. After the jury was sworn, but before any evidence was offered, the district attorney moved to submit the bill against Mrs. Liddy. The other defendants were tried together, resulting in the conviction of Liddy on the first three counts, and of King upon both counts, of the respective indictments against them. Motions for a new trial and in arrest of judgment were made in behalf of each defendant.

[1] Error is assigned to the overruling of an objection to the question on cross-examination of Liddy whether he had previously been convicted of the illegal sale of intoxicating liquors. This question Liddy answered in the negative, but admitted that, under advice of counsel, he had entered a plea of guilty to the indictment in question. On direct examination, the defendant had testified that he had never on previous occasions unlawfully sold intoxicating liquors. He thus opened the door for cross-examination as to previous violations on the issue of his credibility. Fields v. United States, 221 Fed. 242, 137 C. C. A. 98; Christopoulo v. United States, 230 Fed. 788, 145 C. C. A. 98; Tierney v. United States (C. C. A.) 280 Fed. 322. And the indictment became evidence in rebuttal upon the issue raised by the defense of previous sales.

[2] Error is also assigned to sustaining the objection to the defendant's wife, Theresa Liddy, testifying as a witness on Liddy's behalf, or on behalf of the defendant King. The consolidation of the indictments and the joint trial of the defendants was not objected to by their counsel, and no severance was asked for, as in O'Brien v. United States (C. C. A.) 299 Fed. 568. Under the common law, which governs the evidence in criminal trials in the federal courts, the wife of one of several defendants on trial at the same time cannot be called as a witness for or against any of them. Talbott v. United States, 208 Fed. 144, 125 C. C. A. 360. See, also, United States v. Davidson, 285 Fed. 661, decided by this court, and Wesoky et al.

v. United States, 175 Fed. 333, 99 C. C. A. 121, by the Circuit Court of Appeals for this Circuit.

The motions for a new trial and in arrest of judgment on behalf of each defendant are denied. It is ordered that the defendants appear in court on Wednesday, October 22, at 10 a. m., for sentence.

In re ALDEN.

(District Court, D. Massachusetts. November 5, 1924.)

No. 32615.

Bankruptcy 77-That claims against bankrupt are trivial in amount held no ground for not enumerating them.

That claims against bankrupt were trivial in amount was no ground for not enumerating them as outstanding claims against bankrupt, on petition by single creditor, in absence of proof that they were kept alive to prevent creditor bringing petition against bankrupt.

In Bankruptcy. In the matter of James E. Alden, alleged bankrupt. On question of accepting master's report. Report affirmed.

Gurdon W. Gordon, of Springfield, Mass., for petitioner.

Boston, Mass., for alleged bankrupt. Friedman, Atherton, King & Turner, of

LOWELL, District Judge. Question of the acceptance of the report of a master, to whom was referred the matter of adjudication, especially in reference to the number of claims, the petition having been brought by a single creditor. The decision of the learned referee sitting as master is attacked on the ground that in determining the number of creditors he took into consideration claims of very trivial amount. referred to three cases as authorities that such claims should not be counted in making up the required number. The authorities cited are In re Blount (D. C.) 142 F. 263; In re Burg (D. C.) 245 F. 173; In re Branche (D. C.) 275 F. 555. See, also, '1 Remington, Bankruptcy (3d Ed.) § 218; 2 Collier, Bankruptcy (13th Ed.) p. 1228.

I am

The first case may be supported on the ground that the bankrupt there concerned fraudulently kept the claims alive for the purpose of preventing a single creditor from bringing a petition against him. See 1 Black, Bankruptcy (3d Ed.) p. 335. The other two cases follow the first, without noticing the element of fraud involved therein.

With due deference to the learned judges

An examination of the authorities material to this question convinces me that the holding of Judge Pierce in this particular was correct. The bill in my opinion contains the necessary jurisdictional facts as to parties and subject-matter and the fund which is the subject of the controversy, consisting of bonds and securities stolen from the First National Bank of Warren, Mass., and were thereafter sold, the proceeds being paid to the Niagara Life Insurance Company to increase its impaired assets. Later the defendant with knowledge came into possession of the proceeds realized on sale of the said securities as official liquidator of the insolvent insurance company pursuant to section 63 of the Insurance Law of the state. Matter of Knickerbocker Life Ins. Co., 199 App. Div. 503, 191 N. Y. S. 780. The right to maintain an action against the superintendent of insurance in his official capacity arising out of funds in his possession belonging to an insolvent insurance company has heretofore been upheld by the Supreme Court of this state. It will suffice to cite Igel v. Phillips as Superintendent, etc., 183 App. Div. 220, 169 N. Y. S. 897, on this point.

It is true that, if this action were likely to result in a money judgment against the state, or against an officer representing a state, or the question at issue involved the liability of the state, or if the decree of the court operated against the state "to compel it to specifically perform its contract," as said in Re State of New York, 256 U. S. 490, 41 S. Ct. 588, 65 L. Ed. 1057, the action would not be maintainable. Then the suit would clearly be against the state and the defendant in his official capacity might be required to satisfy the liability from any property in his hands belonging to the state. McWhorter v. Pensacola & Atlanta R. Co., 24 Fla. 417, 5 So. 129, 2 L. R. A. 504, 12 Am. St. Rep. 220. But, as heretofore stated, complainant does not ask that the defendant pay out any state monies on the theory that the state is liable directly or indirectly. His prayer for relief is that a trust be impressed upon the proceeds of the purloined securities which came into the custody of the defendant as liquidator for the benefit of the rightful owner thereof. The position of the defendant in this respect

In Lankford v. Platte Iron Works Co., 235 U. S. 461, 35 S. Ct. 173, 59 L. Ed. 316, a case stressed by counsel. for defendant, the United States Supreme Court substantially held, it is true, that a suit by a depositor of a bank to require the bank commissioner of Oklahoma to make payment out of a fund was suit against the state under the Eleventh Amendment, and could not be maintained in the federal court; but a perusal of the opinion of the court shows that the state courts of Oklahoma had previously held that the title to the depositors' guaranty fund was in the state, and hence the state, as an exercise of the police power, had the right to determine whether title to the fund of an insolvent bank vested in the state for the purpose of its administration, or whether the fund should be committed to the mere ministerial administration of the banking board "and subject them to controversies with depositors or draw around them the circle of immunity." The suit was held by the court to be against the state, because the state obtained a definite title to the fund. In this case there is no state statute vesting the state with the title of the assets of the insolvent insurance company, or imputing to the insurance superintendent the immunity from suit to which the state is entitled.

[2] Another noticeable objection to the bill is that an adequate remedy at law exists under section 63 of the state Insurance. Act. By that act, however, no new rights were created, and the complainant no doubt could have sued the insurance company in liquidation to recover the proceeds of the stolen bonds, and such a remedy would not, in my view, be inconsistent with that afforded by the statute. McGraw v. Gresser, 226 N. Y. 57, 123 N. E. 84 In Rosin v. Lidgerwood Mfg. Co., 89 App Div. 245, 86 N. Y. S. 49, Mr. Justice Woodward said:

"So, where a remedy existed at the common law for a wrong or injury against which a remedial statute is directed, if such statute provides a more enlarged or summary or more efficient remedy for the party aggrieved, but does not in terms or by necessary implication deprive him of the remedy which existed at common law, the stat