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2 F.(20) 69 the assets and the assets themselves and used WADDILL, Circuit Judge. This is a it either for their own benefit or for some writ of error to a judgment of the United one whom they selected to prefer or to be a States District Court for the District of beneficiary of it, they would be guilty in ei- Maryland, rendered on the 9th day of May, ther event."

1923, in favor of the defendant in error The above-quoted instruction was not er- against the plaintiff in error, for $27,264.11, roneous. The criminality involved in one with interest and costs. The writ of error knowingly and fraudulently concealing while was sued out from the District Court dia bankrupt from his trustee property be- rect to the Supreme Court of the United longing to his estate in bankruptcy is not States, and by order of the latter court was purged by his using the whole or part of transferred to this court, pursuant to the the concealed property for the benefit of a Act of Congress of September 14, 1922, c. preferred creditor or some one else. Coren- 305, 42 Stat. 837 (Comp. St. Ann. Supp. man v. United States, 188 F. 424, 110 C. C. 1923, $ 1215a). A. 341.

The case was heretofore before this court The judgment is affirmed.

on a writ of error to the District Court of Maryland, challenging the correctness of the

all'd 2684. 674 69 judgment that court rendered in favor of

the plaintiff in error against the defendant DAVIS, Agent, éto., v. DEXTER & CAR- in error, which latter judgment was reversPENTER, Inc.

ed by this court on the 31st of May, 1922, (Circuit Court of Appeals, Fourth Circuit.

a new trial awarded, and the case remanded September 29, 1924.)

to the District Court for retrial. 281 F. No. 2250.

385. Reference may be had to that decision Appeal and error on 1099(10)- Judgment con

as containing a full and accurate account of forming to prior decision and remand will not the facts and circumstances of the case, again be reviewed.

which need not be recited here. By that deWhere the appellate court, in reversing a cision, this court concluded that the plaintiff, judgment on a former writ of error, determined that plaintiff was entitled to recover the the defendant in error herein, was entitled to amount sued for, a judgment for plaintiff on recover of the plaintiff in error the full a second trial on substantially the same evi

amount of the claim sued for. At the new dence will not be reversed.

trial, the District Court in all respects comIn Error to the District Court of the Unit- plied with and carried out the judgment of ed States for the District of Maryland, at this court, and in so doing rendered the Baltimore; John C. Rose, Judge.

judgment complained of in favor of the Action at law by Dexter & Carpenter, plaintiff, the defendant in error, against the Inc., against James C. Davis, Agent, etc.

plaintiff in error herein. The facts in the Judgment for plaintiff, and defendant brings

two trials seem not to have been materialerror. Affirmed.

ly different, if at all. We therefore perSee, also, 281 F. 385.

ceive no reason for changing the views ex

pressed in our previous opinion. 281 F. Duncan K. Brent, of Baltimore, Md.

385, supra. The view of the court was that (Francis R. Cross, of Baltimore, Md., on Georgia, Florida & Alabama Railway Co. the brief), for plaintiff in. error.

v Blish Milling Co., 241 U. S. 190, 36 Sup. William B. Symmes, Jr., of New York

Ct. 541, 60 L. Ed. 948, did not involve and City (Davis, Symmes & Schreiber, of New did not apply to deliberate taking or conYork City, on the brief), for defendant in fiscation of freight. error.

The judgment of the District Court is Before WOODS and WADDILL, Cir- hereby affirmed. cuit Judges, and GRONER, District Judge. Affirmed.

RANTALA v. UNITED STATES. sider his conduct such as they found from

the evidence it was, when the officers came (Circuit Court of Appeals, Ninth Circuit. November 3, 1924.)

in, and from all the surrounding circum

stances determine whether or not he, as well No. 4303.

as Hoiska, was interested in operating the Intoxicating liquors 236(6/2) - Evidence business. We think the charge was justified held to sustain conviction for unlawful posses. by the evidence. sion.

Evidence held to sustain a conviction for un- Finding no error, the judgment is aflawful possession of intoxicating liquor and firmed. maintaining a puisance, where it tended to show that, though defendant had leased the premises to another, in whose name license to conduct the business was taken, he was actually par

UNITED STATES V. LIDDY. ticipating in its management.

SAME V. KING. In Error to the District Court of the (District Court, E. D. Pennsylvania. OctoUnited States for the Northern Division of

ber 17, 1924.) the District of Idaho; Frank S. Dietrich,

Nos. 315, 316. Judge.

1. Witnesses 350 - Cross-examination of

defendant as to previous conviction held Criminal prosecution by the United States

proper. against John Rantala. Judgment of convic

A defendant charged with illegal sale of tion, and defendant brings error. Affirmed. liquor, who as a witness in his own behalf tes

tified that he had never previously sold liquor R. B. Norris, of St. Maries, Idaho, for unlawfully, opened the door for cross-examina

tion as to whether he had previously been conplaintiff in error.

victed of such offense. E. G. Davis, U. S. Atty., and William H.

2. Witnesses Om52(7)-Wife of one of several Langroise, Asst. U. S. Atty., both of Boise, defendants in criminal trial not competent Idaho.

witness.

Under the common law, which governs the Before GILBERT, ROSS, and RUDKIN, evidence in criminal trials in the federal courts, Circuit Judges.

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. GILBERT, Circuit Judge. The plaintiff in error was convicted under two counts of Criminal prosecution by the United States an information which charged him with the against Patrick J. Liddy and Thomas King. unlawful possession of intoxicating liquor On motions for new trial and in arrest of and the maintenance of a nuisance. On the judgment. Denied. trial no exception was taken to any ruling

George W. Coles, Dist. Atty., and Henry of the court, and no request was made for B. Friedman, Asst. Dist. Atty., both of an instructed verdict of acquittal.

Philadelphia, Pa., for the United States. It is contended that there was no legal

Edgar W. Lank, of Philadelphia, Pa., for evidence of the connection of the plaintiff defendants. in error with the pool hall and soft drink place in which the liquor was found, and re- THOMPSON, District Judge. The deliance is placed upon the fact that the prem- fendant Patrick J. Liddy was charged in ises had been leased by the plaintiff in er- an indictment containing five counts with ror to one Hoiska, as shown by a copy of violations of the National Prohibition Act.2 the lease and receipts for rent paid by Count 1 charged the sale of whisky on OctoHoiska, and licenses issued to the latter to ber 23, 1923; count 2, the sale of whisky maintain a soft drink parlor and pool tables. on October 24, 1923; count 3, the maintainBut there was evidence to go to the jury ing of a common nuisance at premises 110that the plaintiff in error was actively par- 112 North Fifty-Sixth street, Philadelphia, ticipating in the management of the place, a saloon where whisky was sold; count 4, that he was seen standing behind the count- the unlawful possession on October 25, 1923, er, and when the officers entered with a of a large quantity of intoxicating liquor, search warrant he endeavored to destroy the namely, whisky, gin, alcohol, wine, and beer; evidence of the presence of intoxicating liq- and count 5, the maintaining of a common

No exception was taken to the charge nuisance on October 25, 1923, at the said of the court, in which the jury were in- saloon, where whisky, gin, alcohol, wine, structed that, if they found the unlawful and beer were kept. The indictment pleadbusiness was being conducted on the prem- ed Liddy's previous conviction in this court ises of the plaintiff in error, they might con- on June 27, 1923, upon a plea of guilty to

1 Comp. St. Ann. Supp. 1923, $ 10138% et seq.

uor.

2 F.(20) 61 an indictment charging him with unlawfully v. United States, 175 Fed. 333, 99 C. C. A. selling intoxicating liquor and maintaining 121, by the Circuit Court of Appeals for a common nuisance.

this Circuit. The defendant Thomas King, who was em- The motions for a new trial and in arrest ployed by Liddy as bartender, was charged of judgment on behalf of each defendant in the first count with the sale of whisky on

are denied. It is ordered that the defendants October 23, 1923, and in the second count appear in court on Wednesday, October 22, with a similar sale on October 24, 1923. at 10 a. m., for sentence. These indictments, together with an indictment charging the sale of intoxicating liquor against Theresa Liddy, the wife of the de

in ro ALDEN. fendant, Patrick J. Liddy, were consolidated for trial. After the jury was sworn, but

(District Court, D. Massachusetts. Novem.

ber 5, 1924.) before any evidence was offered, the district

No. 32615. attorney moved to submit the bill against Mrs. Liddy. The other defendants were Bankruptcy Om77—That claims against bank. tried together, resulting in the conviction

rupt are trivial in amount held no ground for

not enumerating them. of Liddy on the first three counts, and of That claims against bankrupt were trivial King upon both counts, of the respective in amount was no ground for not enumerating

them as outstanding claims against bankrupt, indictments against them. Motions for a

on petition by single creditor, in absence of new trial and in arrest of judgment were proof that they were kept alive to prevent credmade in behalf of each defendant.

itor bringing petition against bankrupt. [1] Error is assigned to the overruling

In Bankruptcy. In the matter of James of an objection to the question on cross-ex

E. Alden, alleged bankrupt. On question amination of Liddy whether he had previous- of accepting master's report. Report afly been convicted of the illegal sale of in

firmed. toxicating liquors. This question Liddy an

Gurdon W. Gordon, of Springfield, Mass., swered in the negative, but admitted that, un

for petitioner. der advice of counsel, he had entered a plea

Friedman, Atherton, King & Turner, of of guilty to the indictment in question. On

Boston, Mass., for alleged bankrupt. direct examination, the defendant had testified that he had never on previous occasions LOWELL, District Judge. Question of unlawfully sold intoxicating liquors. He the acceptance of the report of a master, to thus opened the door for cross-examination whom was referred the matter of adjudias to previous violations on the issue of his cation, especially in reference to the number credibility. Fields v. United States, 221 of claims, the petition having been brought Fed. 242, 137 C. C. A. 98; Christopoulo v. by a single creditor. The decision of the United States, 230 Fed. 788, 145 C. C. A. learned referee sitting as master is attack98; Tierney v. United States (C. C. A.) 280 ed on the ground that in determining the Fed. 322. And the indictment became evi- number of creditors he took into consideradence in rebuttal upon the issue raised by tion claims of very trivial amount. I am the defense of previous sales.

referred to three cases as authorities that [2] Error is also assigned to sustaining such claims should not be counted in makthe objection to the defendant's wife, Ther- ing up the required number. The authoriesa Liddy, testifying as a witness on Liddy's ties cited are In re Blount (D. C.) 142 F. behalf, or on behalf of the defendant King. 263; In re Burg (D. C.) 245 F. 173; In re The consolidation of the indictments and Branche (D. C.) 275 F. 555. See, also, 1 the joint trial of the defendants was not Remington, Bankruptcy (3d Ed.) § 218; 2 objected to by their counsel, and no sever- Collier, Bankruptcy (13th Ed.) p. 1228. ance was asked for, as in O'Brien v. United The first case may be supported on the States (C. C. A.) 299 Fed. 568. Under the ground that the bankrupt there concerned common law, which governs the evidence in fraudulently kept the claims alive for the criminal trials in the federal courts, the wife purpose of preventing a single creditor from of one of several defendants on trial at the bringing a petition against him, See 1 same time cannot be called as a witness for Black, Bankruptcy (3d Ed.) p. 335. The or against any of them. Talbott v. United other two cases follow the first, without States, 208 Fed. 144, 125 C. C. A. 360. See, noticing the element of fraud involved therealso, United States v. Davidson, 285 Fed. in. 661, decided by this court, and Wesoky et al. With due deference to the learned judges

1

who have decided these cases, they do not ren, Mass., against Francis R. Stoddard, commend themselves to my judgment. Jr., individually and as Superintendent of Doubtless it would be convenient to disre- Insurance of the State of New York, and gard the bills of the butcher, the baker, and the Metropolitan Life Insurance Company. the candlestick maker as beneath the dignity On motion to dismiss. Motion denied. of the bankruptcy court, but I find in the act Louis L. Babcock, of Buffalo, N. Y., for no authority for such a course.

complainant. In the case at bar there is no intimation Carl Sherman, Atty. Gen. of New York, that any claims were kept alive in order to and Michael J. Montesano and Clarence C. prevent a creditor from bringing his peti- Fowler, Deputy Attys. Gen. of New York, tion against the bankrupt. This distinguish- appearing specially for People of State of es it from Leighton v. Kennedy, 129 F. 737, New York and Francis R. Stoddard, Jr. 64 C. C. A. 265. I therefore affirm the master's report.

HAZEL, District Judge (sitting during absence from district of Judge Cooper). [1] This is a motion on behalf of defendant, ap

pearing specially, to dismiss the bill of comBEAN V. STODDARD, State Superintendent plaint and set aside the service of the subof Insurance, et al.

pæna herein. The defendant, as superin(District Court, N. D. New York. June 1, tendent of insurance of the state of New 1923.)

York, has filed suggestions embodying the 1. Courts Sm 303 (2)-Action against superin- principal grounds questioning the jurisdic

tendent of insurance to impress fund in his tion of this court; their basis being that the hands with trust held not “action against suit in equity is against the sovereign state state."

Where proceeds of bonds and securities of New York, and, since neither the state nor stolen from bank were paid to insurance com- the defendant, who is a constitutional officer pany, and came into hands of state superintend of the state, has consented to be sued, the ent of insurance as official liquidator, held, action against insurance superintendent by re- latter is entitled to the same immunity from ceiver of bank to impress such fund with trust suit that the state is entitled to receive, and, in favor of bank was not an "action against tho state," nor a constitutional officer of it. . moreover, that by section 63 of the Insur

(Ed. Note.-For other definitions, see Words ance Law (Consol. Laws, c. 28) specifio and Phrases, First and Second Series, Suit provision is made for fixing and determinagainst the State.]

ing the rights and liabilities of all persons 2. Trusts 359 (3) --Adequate remedy at law to property of delinquent and insolvent in

held not to preclude suit to impress fund in hands of superintendent of insurance with surance companies in liquidation proceedtrust.

ings. Suit by receiver of bank against superintendent of insurance to impress trust on pro

It appears that prior to this action comceeds of stolen bonds and securities, which had plainant obtained an order from the Subeen paid to an insurance company and had preme Court of this state permitting him to come into defendant's hands as official liquidator, held not improper, though an adequate

sue the defendant individually and in his remedy at law might exist under Insurance official capacity. The defendant moved the Law N. Y. 8 63.

court to vacate the order upon substantially 3. Banks and banking w287(4) - Complaint the same grounds presented here for dismiss

held to sufficiently disclose receiver's capacity ing the bill. The motion was denied by to sue.

Complaint in suit by receiver of national Pierce, J. ([Sup.) 206 N. Y. S. 753), who bank to impress with trust a fund in hands held that the funds of the Niagara Life Inof state superintendent of insurance, which alleged plaintiff's appointment and assumption

surance Company which are now in the posof duties as receiver, held to show sufficient ca- session of the defendant in his official capacity to sue, in absence of specific denial of pacity as superintendent of insurance did such appointment.

not belong to the state; that the state had 4. Banks and banking 287 (4)—Specific In

no interest in or lien upon the money or structions to commence action not essential to receiver's capacity to sue.

property of the insolvent insurance comUnder Rev. St. $ 5234 (Comp. St. $ 9821), it is duty of receiver of national bank to col: pany, except for the purpose of liquidation; lect assets and debts, and he is not required, that action brought to recover the proceeds as affecting his capacity to sue, to obtain spe- of the bonds would not be against the state cific instructions before commencing action for such purpose.

or against a state officer. The learned

court directed attention to Allen, Bank At Law. Action by N. S. Bean, as re- Commissioner, et al., v. U. S. (C. C. A.) ceiver of the First National Bank of War- 285 F. 678, wherein it was held that a suit

2 F.(20) 62 against a state bank commissioner to estab- is not essentially different from that of the lish a claim against assets of an insolvent state superintendent of banks under section bank of which he has taken charge was not 150, General Corporation Law (Consol. one against a state which had no interest Laws, c. 22). Matter of Carnegie Trust in the fund.

Co., 161 App. Div. 280, 146 N. Y. S. 809; An examination of the authorities ma- Tindal v. Wesley, 167 U. S. 204, 17 S. Ct. terial to this question convinces me that the 770, 42 L. Ed. 137, holding of Judge Pierce in this particular In Lankford v. Platte Iron Works Co., was correct. The bill in my opinion con- 235 U. S. 461, 35 S. Ct. 173, 59 L. Ed. 316, tains the necessary jurisdictional facts as a case stressed by counsel for defendant, to parties and subject-matter and the fund the United States Supreme Court substanwhich is the subject of the controversy, con- tially held, it is true, that a suit by a depossisting of bonds and securities stolen from itor of a bank to require the bank commisthe First National Bank of Warren, Mass., sioner of Oklahoma to make payment out of and were thereafter sold, the proceeds being a fund was suit against the state under the paid to the Niagara Life Insurance Com- Eleventh Amendment, and could not be pany to increase its impaired assets. Later maintained in the federal court; but a peruthe defendant with knowledge came into pos- sal of the opinion of the court shows that session of the proceeds realized on sale of the state courts of Oklahoma had previousthe said securities as official liquidator of ly held that the title to the depositors' guarthe insolvent insurance company pursuant anty fund was in the state, and hence the to section 63 of the Insurance Law of the state, as an exercise of the police power, state. Matter of Knickerbocker Life Ins. had the right to determine whether title to Co., 199 App. Div. 503, 191 N. Y. S. 780. the fund of an insolvent bank vested in the The right to maintain an action against the state for the purpose of its administration, superintendent of insurance in his official or whether the fund should be committed capacity arising out of funds in his posses- to the mere ministerial administration of sion belonging to an insolvent insurance the banking board "and subject them to concompany has heretofore been upheld by the troversies with depositors or draw around Supreme Court of this state. It will suffice them the circle of immunity.” The suit was to cite Igel v. Phillips as Superintendent, held by the court to be against the state, etc., 183 App. Div. 220, 169 N. Y. S. 897, because the state obtained a definite title to on this point.

the fund. In this case there is no state It is true that, if this action were likely to statute vesting the state with the title of result in a money judgment against the the assets of the insolvent insurance comstate, or against an officer representing a pany, or imputing to the insurance superinstate, or the question at issue involved the tendent the immunity from suit to which liability of the state, or if the decree of the the state is entitled. court operated against the state "to compel [2] Another noticeable objection to the it to specifically perform its contract," ag bill is that an adequate remedy at law exsaid in Re State of New York, 256 U. ists under section 63 of the state Insurance. S. 490, 41 S. Ct. 588, 65 L. Ed. 1057, the Act. By that act, however, no new rights action would not be maintainable. Then the were created, and the complainant no doubt suit would clearly be against the state and could have sued the insurance company in the defendant in his official capacity might liquidation to recover the proceeds of the be required to satisfy the liability from any stolen bonds, and such a remedy would not, property in his hands belonging to the state. in my view, be inconsistent with that afMcWhorter v. Pensacola & Atlanta R. Co., forded by the statute. McGraw v. Gresser, 24 Fla. 417, 5 So. 129, 2 L. R. A. 504, 12 226 N. Y. 57, 123 N. E. 84 In Rosin v. Am. St. Rep. 220. But, as heretofore stat- Lidgerwood Mfg. Co., 89 App Div. 245, ed, complainant does not ask that the de- 86 N. Y. $. 49, Mr. Justice Woodward said: fendant pay out any state monies on the “So, where a remedy existed at the comtheory that the state is liable directly or in- mon law for a wrong or injury against directly. His prayer for relief is that a which a remedial statute is directed, if such trust be impressed upon the proceeds of the statute provides a more enlarged or sumpurloined securities which came into the mary or more efficient remedy for the party custody of the defendant as liquidator for aggrieved, but does not in terms or by necthe benefit of the rightful owner thereof. essary implication deprive him of the remThe position of the defendant in this respectedy which existed at common law, the stat

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