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It Supplements the Decennial Digests, the Key-Number Series and
Prior Reporter Volume Index-Digests

ABATEMENT AND REVIVAL.

II. ANOTHER ACTION PENDING. 8(2) (U.S.C.C.A.Tex.) Trustee's right to sue to recover concealed assets held not affected by pendency of another action between same parties.-Walker v. Wilkinson, 3 F. (2d) 867.

V. DEATH OF PARTY AND REVIVAL OF ACTION.

(A) Abatement or Survival of Action. 49 (U.S.C.C.A.Mass.) Survival of action governed by law of forum.-Page v. United Fruit Co., 3 F. (2d) 747.

ACCORD AND SATISFACTION.

See Compromise and Settlement.

10(1) (U.S.C.C.A.S.C.) Adjustment of dispute between seller and buyer by abatement in price held to constitute accord and satisfaction. -Woodside Cotton Mills Co. v. Kaustine Co., 3 F.(2d) 523.

ACTION.

See Abatement and Revival.

IV. COMMENCEMENT, PROSECUTION,
AND TERMINATION.

69 (U.S.C.C.A.Utah) Prior Jurisdiction of state court ground only for stay of subsequent suit in federal court.-Boston Acme Mines Corporation v. Salina Canyon Coal Co., 3 F. (2d) 729.

ADMINISTRATION.

See Executors and Administrators.

ADMIRALTY.

See Collision: Maritime Liens; Salvage; Seamen; Shipping; Towage.

I. JURISDICTION.

13 (U.S.D.C.Cal.) Hospital's libel against shipowner for treatment furnished injured seaman held maritime action.-Methodist Episcopal Hospital v. Pacific Transport Co., 3 F. (2d) 508.

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16 (U.S.D.C.N.C.) Priority of mortgage See Principal and Agent. could be determined in libel against vessel by lien claimant.-The Defiance, 3 F. (2d) 48.

II. REMEDIES IN PERSONAM AND IN

REM.

28 (U.S.D.C.Pa.) Vessel not liable in rem for injuries to member of crew from assault arising from master's failure to maintain discipline. The Robinson, 3 F. (2d) 507.

31 (U.S.C.C.A.Tex.) Doctrine of assumption of risk applied in admiralty.-Gaderson v. Texas Contracting Co., 3 F. (2d) 140.

3 F. (2d)-65

ALIENS.

II. EXCLUSION OR EXPULSION. 23(1) (U.S.D.C.Wash.) Native of Philippine Islands, of Chinese descent, held subject to exclusion laws.-Ex parte Palo, 3 F. (2d) 44.

25 (U.S.D.C.Wash.) Chinese assistant manager of restaurant held a "merchant."-Ex parte Wong Jun, 3 F. (2d) 502.

To be partner, under Exclusion Act, name need not appear in firm title.-Id.

(1025)

entitled

32(1) (U.S.C.C.A.Vt.) Chinaman to determination of whether he is citizen in judicial proceeding.-Soo Hoo Yee v. U. S., 3 F. (2d) 592.

32 (6) (U.S.C.C.A.Vt.) Certificate of United States commissioner in one district not competent evidence in other district as to disposition of deportation proceeding in first district. -Soo Hoo Yee v. U. S., 3 F. (2d) 592. Hearsay evidence as to place of birth held admissible because best evidence obtainable. -Id.

32(8) (U.S.C.C.A.Cal.) Exclusion of Chinese boys held supported by the evidence.Soo Hoo Hung v. Nagle, 3 F. (2d) 267.

32(8) (U.S.C.C.A.Mass.) Decision excluding alleged sons of Chinese citizen held made after fair trial.-Johnson v. Kock Shing, 3 F. (2d) 889.

32(9) (U.S.C.C.A.Vt.) Defendant in deportation proceeding who claims to be citizen is entitled to prompt hearing and tinal disposition on merits.-Soo Hoo Yee v. U. S., 3 F. (2d) 592.

32(12) (U.S.C.C.A.Mass.) Finding that the alleged father of Chinese immigrants was not a citizen of the United States held not subject to reversal.-Lee Tuck Gan v. Johnson, 3 F. (2d) 804.

32(13) (U.S.C.C.A.Cal.) Order of exclusion, made on conflicting evidence, held not reviewable.-Young Fat v. Nagle, 3 F. (2d) 439.

ice in merchant marine or filing of declaration of intention to become citizen.-Id.

54 (U.S.C.C.A.III.) Defects in deportation warrant held not to require alien's discharge where sufficient grounds for detention shown. -Kush v. Davis, 3 F. (2d) 273.

Evidence held sufficient to warrant alien's deportation for circulating literature prohibited by statute.-Id.

54 (U.S.C.C.A.Me.) Alien may not be deported on ground different from that on which he has been heard.-Throumoulopolou v. U. S., 3 F. (2d) 803.

54 (U.S.C.C.A.Me.) Judgment discharging petitioner in habeas corpus proceeding held reviewable on merits.-Howes v. Tozer, 3 F. (2d) 849.

Only unqualified admission by alien of commission of crime will warrant deportation. Id. Where immigration authorities have exceeded jurisdiction, court may determine case on its merits.-Id.

54 (U.S.C.C.A.Mass.) Objections to proceedings for deportation held waived.-MacKusick v. Johnson, 3 F. (2d) 398.

Secretary has option as to country to which deportation is to be made.-Id.

54 (U.S.C.C.A.Mass.) Decision of immigration officials, denying entry on fair hearing, is final.-Johnson v. Kock Shing, 3 F. (2d) 889.

Immigration officials are not restricted to legal evidence on hearing before them.-Id.

32(13) (U.S.C.C.A.Vt.) Trial in District Court on appeal from commissioner in depor-54 (U.S.C.C.A.N.Y.) Release on writ of tation proceedings is de novo.-Soo Hoo Yee v. U. S., 3 F. (2d) 592.

Alleged alien need not submit testimony before commissioner in deportation proceedings, but may appeal directly to the District Court. -Id.

Evidence held to prove Chinaman a citizen, because born in this country.-Id.

III. IMMIGRATION.

46 (U.S.C.C.A.Mass.) Secretary held without discretion to admit alien returning after absence of nine years.-MacKusick v. Johnson, 3 F.(2d) 398.

Procedure in applying literacy test.-Id.

46 (U.S.C.C.A.Wis.) Use of semicolon and comma in Immigration Act defined.-Grkic v. U. S., 3 F. (2d) 276.

habeas corpus required where Commissioner of Immigration exceeds power.-U. S. ex rel. Mantler v. Commissioner of Immigration, 3 F. (2d) 234.

Decision of immigration officials on evidence conclusive. Id.

some

54 (U.S.C.C.A.N.Y.) Decision of Board of Special Inquiry conclusive if based on evidence and action of Bourd was not arbitrary and unfair.-Chryssikos v. Commissioner of Immigration, Ellis Island, New York, N. Y., 3 F.(2d) 372.

Evidence insufficient to warrant finding that alien was not temporary visitor.-Id.

54 (U.S.C.C.A.N.Y.) Decision of board of special inquiry, supported by evidence, will not be reviewed by courts.-U. S. v. Commissioner of Immigration, 3 F. (2d) 551.

54 (U.S.C.C.A.Tex.) Finding of grounds for deportation by department not conclusive. 46 (U.S.D.C.N.Y.) Statute relating to aliens-Lisotta v. U. S., 3 F. (2d) 108. returning from temporary visit abroad administered according to equitable principles.-In re Spinnella, 3 F.(2d) 196.

51 (U.S.C.C.A.Wis.) Alien entering United States for immoral purposes held subject to deportation.-Grkic v. U. S., 3 F. (2d) 276. 512 [New, vol. 16A Key-No. Series] (U.S.C.C.A.Mass.) Department rule limiting "temporary absence" to six months held reasonable.-MacKusick Johnson, 3 F. (2d) 398.

512 [New, vol. 16A Key-No. Series] (U.S.D.C.N.Y.) Aliens returning from temporary visit abroad held entitled to admission, though nonquota visas omitted from passports. In re Spinnella, 3 F. (2d) 196.

53 (U.S.C.C.A.N.Y.) Alien held not subject to deportation as likely to become public charge.-U. S. ex rel. Mantler v. Commissioner of Immigration, 3 F. (2d) 234.

53 (U.S.C.C.A.Tex.) Deportation on ground that alien was likely to become a public charge at the time of admission not warranted.-Lisotta v. U. S.. 3 F. (2d) 108.

53 (U.S.D.C.Cal.) Alien seaman not having the proper certificate and consular visé held not entitled to remain.-Ex parte Marchant, 3 F.(2d) 695.

Seaman without certificate or visé not permitted to remain indefinitely because of serv

Order for deportation must be supported by evidence.-Id.

54 (U.S.C.C.A.Wis.) Evidence held sufficient to show accused knowingly distributed literature opposing organized government.Gebartus v. Paul, 3 F. (2d) 145.

54 (U.S.D.C.N.Y.) Alien found feebleminded held to have been accorded a fair and impartial hearing.-U. S. v. Tod, 3 F. (2d) 836. Evidence held to sustain finding that alien was feeble-minded.-Id.

Findings in deportation and exclusion proceedings final, where supported by evidence. -Id.

IV. NATURALIZATION.

62 (U.S.D.C.Tex.) Alien, convicted of illegal manufacture of liquor during period of probation, not eligible to citizenship; "attached to the principles of the Constitution."In re Nagy, 3 F. (2d) 77.

62 (U.S.D.C.Tex.) Alien, convicted, of illegal possession of liquor during period of probation, not eligible to citizenship.-In re Raio, 3 F. (2d) 78.

62 (U.S.D.C.Tex.) Conviction of illegal possession of a still held to bar admission to citizenship. In re Phillips, 3 F. (2d) 79.

66 (U.S.D.C.Cal.) Alien seaman having served more than three years in merchant ma

For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER

rine and presenting proper certificate of arrival held entitled to admission to citizenship.In re Linklater, 3 F. (2d) 691.

Seaman's service in American merchant marine need not be subsequent to lawful entry and declaration of intention to warrant naturalization.-Id.

68 (U.S.D.C.Cal.) Naturalization examiner without judicial powers and without power to prevent any person from filing petition for naturalization; "master."-In re Linklater, 3 F. (2d) 691.

69 (U.S.D.C.Cal.) Entry of seaman supporting application by nunc pro tunc certificate of arrival presumed lawful.-In re Linklater, 3 F. (2d) 691.

ANTI-TRUST LAWS.

See Monopolies, 17.

APPEAL AND ERROR.

See Certiorari; Criminal Law, 1030-1177;
Exceptions, Bill of.

For review of rulings in particular actions or
proceedings, see also the various specific top-
ics.

III. DECISIONS REVIEWABLE.

(D) Finality of Determination.
80(4) (U.S.C.C.A.W.Va.) Final decree es-
sential before appeal lies.-Steel & Tube Co. of
America v. Dingess Rum Coal Co., 3 F. (2d)
805.

V. PRESENTATION AND RESERVATION
IN LOWER COURT OF GROUNDS
OF REVIEW.

(A) Issues and Questions in Lower Court.
173(1) (U.S.C.C.A.Ark.) Defense not pre-
sented to trial court cannot be considered by
appellate court.-Hercules Powder Co. v. Rich,
3 F. (2d) 12.

(B) Objections and Motions, and Rulings

Thereon.

184 (U.S.C.C.A.Tenn.) Circuit Court of Appeals held not bound of its own motion to consider question whether trial court had equity jurisdiction.-Meriweather-Graham-Oliver Co. v. Bank of Commerce of Earle, Ark., 3 F. (2d) 513.

232 (2) (U.S.C.C.A.N.Y.) Objection to testimony not made at trial cannot be considered on appeal to justify its exclusion.-Cudahy Packing Co. v. Narzisenfeld, 3 F. (2d) 567.

237(2) (U.S.C.C.A.Cal.) Plaintiffs in error, who did not move to strike out evidence, cannot complain that evidence was allowed to remain in case.-Steil v. Holland, 3 F. (2d) 776.

237(5) (U.S.C.C.A.Cal.) Sufficiency of evidence not considered, in absence of motion for directed verdict.-Steil v. Holland, 3 F. (2d) 776.

237(6) (U.S.C.C.A.Va.) Question of substantial evidence at close of trial to sustain finding reviewable on exception to ruling on request or motion.-Martin v. Richmond, F. & P. R. Co., 3 F. (2d) 26.

242(3) (U.S.C.C.A.Tex.) Questions not presented to trial court are waived.-Tampico Banking Co., S. A., v. Barber, 3 F. (2d) 136.

(C) Exceptions.

263 (3) (App.D.C.) Failure to instruct as to interest of witness not error, in absence of prayer and exception to charge as given.-Economon v. Barry-Pate Motor Co., 3 F. (2d) 84.

VI, PARTIES.

324 (U.S.C.C.A.III.) Summons and severance held not necessary on appeal by one defendant.-Reinecke v. Peacock, 3 F. (2d) 583.

327(9) (U.S.C.C.A.Porto Rico) Parties; general creditors are sufficiently represented

by receiver in appellate proceedings.-Koppel Industrial Car & Equipment Co. v. Lee, 3 F. (2d) 886.

X. RECORD AND PROCEEDINGS NOT IN

RECORD.

(K) Questions Presented for Review. 674 (U.S.C.C.A.Utah) Error not predicable on ruling as to priority of jurisdiction, when necessary facts not shown.-Boston Acme Mines Corporation v. Salina Canyon Coal Co., 3 F. (2d) 729.

(L) Matters Not Apparent of Record.

713(1) (U.S.C.C.A.Tex.) Ruling on motion not shown by bill of exceptions not reviewable. -Tampico Banking Co., S. A., v. Barber, 3 F. (2d) 136.

XVI. REVIEW.

(A) Scope and Extent in General.

842 (7) (U.S.C.C.A.Va.) Whether at close of trial there is substantial evidence to sustain finding held question of law for court.Martin v. Richmond, F. & P. R. Co., 3 F. (2d) 26. 849(2) (U.S.C.C.A.Cal.) Rulings made on trial to court without written stipulation not reviewable.-Emerzian v. S. J. Kornblum & William Kornblum, 3 F. (2d) 995.

850 (2) (U.S.C.C.A.Ind.) Where jury waived, court authorized to review evidence on writ of error, though neither findings nor request therefor made.-Muentzer V. Los Angeles Trust & Savings Bank, 3 F. (2d) 222.

850(2) (U.S.C.C.A.Tex.) Reviewing court cannot examine evidence and supply necessary finding.-Border Gas Co. v. Windrow, 3 F.(2d)

974.

(C) Parties Entitled to Allege Error.

882(14) (App.D.C.) Plaintiff, having insisted that court should pass on issues involved as matter of law, could not complain on appeal of court's failure to submit facts to jury.-Lemon v. Martin, 3 F. (2d) 710.

(E) Presumptions.

928(1) (U.S.C.C.A.Cal.) Jury presumed to have been properly instructed.-Steil v. Holland. 3 F. (2d) 776.

930(1) (U. S. C. C. A. Porto Rico) Evidence considered in light most favorable to verdict.Porto Rico Ry., Light & Power Co. v. Cognet, 3 F. (2d) 21.

931(1) (U.S.C.C.A.Ark.) Findings of fact, made on conflicting evidence, presumed correct. -U. S. v. Rhodes, 3 F. (2d) 771.

(F) Discretion of Lower Court. 969 (U.S.C.C.A.W.Va.) Refusal to transfer case to equity side not disturbed on appeal, unless clearly erroneous.-Fidelity & Casualty Co. of New York v. Glenn, 3 F. (2d) 913. 971(2) (U.S.C.C.A.Mass.) Competency of expert for determination by trial court.-Lynn Storage Warehouse Co. v. Senator, 3 F. (2d) 558.

(G) Questions of Fact, Verdicts, and Findings.

997(3) (U.S.C.C.A.N.Y.) Where both parties move for directed verdict, both are bound by court's finding.-Coal & Iron Nat. Bank of City of New York v. Suzuki, 3 F.(2d) 764.

997 (3) (App.D.C.) Both parties, having moved for directed verdict, were concluded by court's finding as to facts, if supported by substantial evidence.-Lemon v. Martin, 3 F. (2d) 710.

1002. Jury's verdict conclusive on conflicting evidence. (U.S.C.C.A.Cal.) Steil v. Holland, 3 F.(2d) 776;

(U.S.C.C.A.S.C.) Woodside Cotton Mills Co. V. Kaustine Co., 3 F. (2d) 523; (U.S.C.C.A.W.Va.) Fidelity & Casualty Co. of New York v. Glenn, 3 F. (2d) 913. 1003 (U.S.C.C.A.Cal.) Weight of evidence was for jury.-Steil v. Holland, 3 F. (2d) 776. 1004 (1) ̊ (U.S.C.C.A.Miss.) Where extent of plaintiff's loss uncertain, and proportion of it attributable to defendant unknown, it cannot be said as matter of law that verdict is inadequate.-Yazoo Spoke Co. v. Moore Dry Kiln Co., 3 F. (2d) 937.

1005 (1) (App.D.C.) Trial court's conclusion as to sufficiency of evidence to sustain verdict not disturbed on appeal.-Economon v. Barry-Pate Motor Co., 3 F. (2d) 84.

1008 (1) (U.S.C.C.A.Pa.) Finding of tribunal charged with determination of questions of fact is final, unless plain and manifest error be shown.-Hazelwood Brewing Co. v. U. S., 3 F. (2d) 721.

1008 (2) (U.S.C.C.A.Tex.) Where jury is waived, special findings have effect of verdict and must embrace finding on every material issue.-Border Gas Co. v. Windrow, 3 F. (2d)

974.

1011(1) (U.S.C.C.A.Ark.) Findings of fact made on conflicting evidence, presumed correct.-U. S. v. Rhodes, 3 F. (2d) 771. ~1011(1) (U.S.C.C.A.Ind.) Circuit Court of Appeals not called on to weigh evidence nor to substitute its conclusion for trial court's. Muentzer v. Los Angeles Trust & Savings Bank, 3 F. (2d) 222.

1022(2) (U.S.C.C.A.S.C.) Findings of fact by master, approved by court, will be accepted, unless clearly not supported by evidence.Bailey v. Blackmon, 3 F. (2d) 252.

(H) Harmless Error.

as

1033(5) (U.S.C.C.A.N.Y.) Instruction to inference of bad faith from circumstances held more favorable to defendant than it was entitled to.-Gerseta Corporation v. WessexCampbell Silk Co., 3 F. (2d) 236.

1035 (U.S.C.C.A.W.Va.) Case improperly tried at law not sent back for transfer to equity side except to prevent miscarriage of justice.-Fidelity & Casualty Co. of New York v. Glenn, 3 F. (2d) 913.

1035 (App.D.C.) That purchasers' action against vendor's tenant, holding over after expiration of term, sounded in contract, and not in tort, was not prejudicial to tenant.-Seldon v. Lee, 3 F. (2d) 335.

1039(13) (U.S.C.C.A.S.C.) Permitting recovery as for breach of contract, rather than as for purchase price of goods sold, but undelivered, held not prejudicial.-Meade Fibre Co. v. Varn, 3 F.(2d) 520.

1048 (6) (App.D.C.) Error in admission of testimony on cross-examination cured by crossexamining party's acceptance of witness as own witness.-Lemon v. Martin, 3 F. (2d) 710. 1058 (1) (U.S.C.C.A.W.Va.) Exclusion of evidence subsequently admitted was not error. -Fidelity & Casualty Co. of New York v. Glenn, 3 F. (2d) 913.

1058 (2) (App.D.C.) Exclusion of testimony on direct examination harmless, where witness gave testimony on cross-examination.Economon v. Barry-Pate Motor Co., 3 F. (2d) 84.

1061 (4) (App.D.C.) Absence of verdict harmless, where both parties moved for directed verdict.-Lemon v. Martin, 3 F. (2d) 710. 1067 (U.S.C.C.A.W.Va.) Modification of instruction offered, making more accurate statement of matter involved, not reversible error.-Fidelity & Casualty Co. of New York v. Glenn, 3 F. (2d) 913.

(K) Subsequent Appeals.

1097 (2) (U.S.C.C.A.N.Y.) Appellate court may reverse former decision establishing the

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1170(1) (U. S. C. C. A. W. Va.) Appellate court's judgment based on entire record without regard to technical errors or defects.-Fidelity & Casualty Co. of New York v. Glenn. 3 F. (2d) 913.

1177(8) (U.S.C.C.A.Tex.) Effect of insufficient findings by trial judge sitting without jury, and of findings which do not support judgment, stated.-Border Gas Co. v. Windrow, 3 F. (2d) 974.

(F) Mandate and Proceedings in Lower

Court.

1198 (U.S.C.C.A.III.) "Law of the case," as decided by Circuit Court of Appeals, binding on District Court.-Luminous Unit Co. v. Freeman-Sweet Co., 3 F. (2d) 577.

Law of case settled on appeal should be followed by Circuit Court of Appeals, unless clearly erroneous and mischievous in operation. -Id.

1203 (5) (U.S.C.C.A.Ill.) Dismissal by District Court held proper, notwithstanding mandate of Circuit Court of Appeals, in view of subsequent decision of Supreme Court.-Luminous Unit Co. v. Freeman-Sweet Co., 3 F. (2d) 577.

1204 (U.S.C.C.A.Tex.) Duty of District Court to give effect to mandate of Circuit Court of Appeals, affirming order of District Court. In re Walker Grain Co., 3 F. (2d) 872.

ARGUMENT OF COUNSEL. See Criminal Law, 721.

ARMY AND NAVY.

44 (1) (U.S.D.C.Kan.) Soldier held triable by court-martial for murder in Mexico, though actual state of war did not exist.-Ex parte Johnson, 3 F. (2d) 705.

512 [New, vol. 12A Key-No. Series] (U.S.C.C.A.III.) Evidence of change of beneficiary held insufficient.-Layne v. U. S.. 3 F. (2d) 431.

Evidence of prenuptial agreement by insured to make wife beneficiary of war risk insurance held insufficient.-Id.

512 [New, vol. 12A Key-No. Series] (U.S.C.C.A.N.Y.) Statute limiting attorney's charges for services rendered beneficiary under War Risk Insurance Act held valid.— Margolin v. U. S., 3 F. (2d) 602.

Attorney not entitled to recover more than $3 for all services rendered to beneficiary of war risk policy.-Id.

ARREST.

II. ON CRIMINAL CHARGES.

63 (4) (U.S.C.C.A.Del.) Federal prohibition agents held justified in making arrest for transportation of liquor without warrant.-Altshuler v. U. S.. 3 F. (2d) 791.

71 (U.S.C.C.A.Del.) Prohibition agents had duty of seizing liquor in possession of person lawfully arrested without warrant.-Altshuler v. U. S., 3 F. (2d) 791.

ASSESSMENT. See Taxation, 398-490.

ASSOCIATIONS.

20(2) (U.S.C.C.A.III.) That action by reciprocal insurance association may be cumbersome and embarrassing does not vest its

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