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that any such right of action would, under C. B. Kennamer, U. S. Atty., of Guntersthe declaration, 'inure to this unique entity ville, Ala., and Jim C. Smith, Asst. U. S. created by the statute, and not to its agent, Atty., of Birmingham, Ala. the attorney in fact.

Before WALKER and BRYAN, Circuit We conclude that the demurrer to the amended declaration was properly sustain

Judges, and ESTES, District Judge. ed, and the judgment is therefore affirmed.

BRYAN, Circuit Judge. This is a prosecution under section 97 of the Criminal

Code (Comp. St. § 10265). The first count FORD et al. v. UNITED STATES. of the indictment, after describing the de

fendants as officers and employees in the in(Circuit Court of Appeals, Fifth Circuit. De

ternal revenue 'service of the United States, cember 16, 1924. Rehearing Denied January 30, 1925.)

charges that they did "unlawfully, wrong

fully, and feloniously convert to their own No. 4425.

use, and embezzle, certain property which

had come into their possession and under 1. Embezzlement 29, 30—Allegation of own.

their control in the execution of their said ership or value held unnecessary in indict. ment for embezzlement by internal revenue offices aforesaid, and under color and claim officer.

of authority as such officers aforesaid, to In an indictment under Criminal Code, ß wit, a large quantity of intoxicating liquor, 97 (Comp. St. § 10265), against officers in the to wit, 153 quarts of whisky.” The second internal revenue service for embezzlement and count is similar to the first. except that it conversion of liquor seized by them as such officers, it is unnecessary to allege the owner

alleges that the property was in the possesship or value of the liquor.

sion of one of the defendants, and was con

verted by all of them to their own use. A 2. Witnesses Om 361(1)–Testimony as to good

demurrer to these two counts, on the grounds character should be directed to reputation.

that the ownership and value of the whisky A question as to the good character of a witness should be directed to his general repu

are not alleged, was overruled. tation for some particular trait of character,

During the trial R. B. Doe, who was emand not to the personal knowledge of the wit- ployed as a prohibition officer, and who in ness testifying.

common with the defendants used and oc

cupied several rooms in the federal build3. Witnesses 361(1)-Character of a wit. ness does not become an issue uniess it is

ing at Birmingham, testified for the governattacked.

ment that he and the defendants took some The character of a witness does not become liquor which had been seized and stored, an issue in a case unless and until it is at and related conversations which he claims tacked, and a mere contradiction of his testi

he had with the defendants indicating their mony is not such an attack.

guilt. The defendants, testifying in their 4. Witnesses 36) (1)-Testimony of char own behalf, denied their guilt, denied the acter witnesses held inadmissible.

conversations related by Doe, and in addiTestimony of character witnesses intro- tion gave testimony which indicated Doe's duced simply to add weight to the testimony of

guilt; but they offered no other testimony a witness who has been contradicted, but whose 6 character has not been attacked, is inadmissi- which could be construed as an attack upon ble.

Doe's character. In rebuttal, the govern

ment was permitted, over the objection of In Error to the Distriet Court of the the defendants, to introduce the testimony United States for the Northern District of of several witnesses to the effect that Doe's Alabama; William I. Grubb, Judge.

character was good and that they would

believe him on oath. The questions calling Criminal prosecution by the United States

* for this testimony were so framed as to inagainst William B. Ford and others. Judg

vite answers relating to Doe's character genment of conviction, and defendants bring

erally, and were not limited to any particuerror. Reversed, with directions for new

lar trait of character. trial.

The defendants were convicted on the first, J. J. Curtis, of Jasper, Ala., and M. C. second, and several other counts of the inStewart, of Birmingham, Ala. (Coleman, dictment. The overruling of the demurrer Coleman, Spain & Stewart, of Birmingham, to the first and second counts, and the ruling Ala., and Curtis, Pennington & Pou, of of the court admitting testimony as to the Jasper, Ala., on the brief), for plaintiffs in good character of the witness Doe, are aserror.

signed as error.

3 F.(20) 105 [1] An allegation of ownership of prop- lowed by this court in Foster v. United erty stolen or embezzled is usually required States, 256 F. 207, 167 C. C. A. 423, in an in indictments, not because ownership is opinion by the able District Judge who tried material, but for the purpose of identifica- the case at bar. Upon further consideration, so that a defendant may prepare his tion we are constrained to overrule that dedefense and protect himself against a sub- cision upon the question here and now insequent prosecution for the same offense. volved. An allegation that the owner was unknown Inasmuch as it will be necessary to order would have been sufficient in this case, and, a new trial, it is proper to say that we have it may be conceded, would have made the examined the remaining assignments of erindictment better. But we think the chal- ror, which relate to rulings upon evidence, lenged counts are sufficient, as the defect is upon requests by the defendants for inat most one of form only. The property structions, which were refused, and that in could not have been that of the defendants, our opinion there was no error in any of or any of them, and whether it belonged to such rulings. the United States, or some person other than The judgment is reversed, with directions the defendants, was immaterial. It came in- for a new trial. to the custody of the defendants under circumstances which made their taking of it an offense under the statute. For the same reasons. it was unnecessary to allege value. FEDERAL TRADE COMMISSION V. PURE Hoback v. United States (C. C. A.) 284 F.

SILK HOSIERÝ MILLS, Inc. 529

(Circuit Court of Appeals, Seventh Circuit.

December 8, 1924. Rehearing Denied [2, 3] The questions which elicited the

January 2, 1925.) evidence of Doe's good character were not

No. 3456. in proper form. The inquiry, if admissible,

Trade-marks and trade-names and unfair comshould have been directed to general reputa

petition 801/2, New, vol. 8A Key-No. Setion for some particular trait of character; ries-Corporation held not to have complied for it is such reputation, and not personal with order prohibiting use of word “mills" knowledge, which is admissible for the pur

until it operated factory or mills. pose of proving character. But, assuming

Acquisition by corporation of less than onethat the questions were proper, we are of

sixth of outstanding stock of hosiery mill and

the placing of one of its officers as one of seven opinion that it was prejudicial error to ad directors of such mill was not a compliance mit the testimony. Although there is a con- with order of Federal Trade Commission, purflict in the authorities, we think the better

suant to Act Cong. Sept. 26, 1914 (Comp. St.

§ 8836a et seq.), requiring it to cease using a rule is that the character of a witness does

name including word "mills" until it actually not become an issue in the case unless and owned or operated a factory or mills. until it is attacked. A contradiction of testimony, although irreconcilable, is not an at- Application for Enforcement of an Ortack upon the character of the witness who der of the Federal Trade Commission. gave it. The admission of character evi

Application by Federal Trade Commisdence to sustain one witness, who has not been impeached, would require the admis

sion for enforcement of order made by it sion of like evidence to sustain all such wit

directed to the Pure Silk Hosiery Mills, Inc. nesses. Such evidence would lead to a con

Petition granted, and restraining order alfusion of issues, and might easily result in

lowed. injustice whenever a prominent witness, James T. Clark, of Washington, D. C., whose reputation is well known, is contra- for petitioner. dicted by an obscure witness, whose reputa- Joseph A. McInerney, of Chicago, Ill., tion is unknown, or not so well known for respondent.

[4] By the great weight of authority, as Before ALSCHULER, EVANS, and well as upon principle, as it appears to us, PAGE, Circuit Judges. testimony of character witnesses, introduced simply to add weight to the testimony of a . ALSCHULER, Circuit Judge. Pursuant witness who has been contradicted, but to Act of Congress approved September 26, whose character has not been attacked, is 1914 (Comp. St. § 8836a et seq.), the Fedinadmissible. L. & N. R. R. Co. v. McClish, eral Trade Commission applies to this court 115 F. 268, 53 C. C. A. 60; 1 Greenleaf, § for enforcement of an order by it made di469a; 2 Wigmore (20 Ed.) § 1109, and cas- recting that "respondents cease and desist es there cited. The contrary rule was fol- from carrying on the business of selling

foetused »

hosiery in commerce among the several states stock, it is frankly conceded that there has of the United States, under a trade-name or been no compliance with the Commission's corporate name which includes the word order, and practically no other reason is “Mills,' in combination with the words 'Pure here advanced for respondent against grantSilk Hosiery,' or words of like import, un- ing the prayer of the petition. less and until such respondents, or either of That the acquirement of slightly more them, actually owns or operates a factory than one-sixth of the stock of an incoror mills in which hosiery sold by them, or porated hosiery mill is compliance with the either of them, is manufactured.”

condition of the order that it actually "owns The nature of the charge may well be in- or operates a factory or mills in which boferred from the order itself, but upon pres- siery sold by them is manufactured” is startentation of the petition to this court the ling in its very statement. If the holding of facts with which we have to deal were stip- this small minority of stock can justify pubulated between petitioner, and respondent.lic representation that respondent owns and From the stipulation it appears that re- operates the mills wherein its hosiery is spondent has acquired and owns 240 out of made, then like representation could be jusa total of 1,363 shares of the outstanding tified by the ownership of any number of capital stock of the Browning Hosiery shares less than 240. But if, in any event, Mills, a Tennessee corporation, having ho- ownership by respondent of a majority or siery mills at Chattanooga; that the respond- even all the stock of another corporation ent's secretary and treasurer is one of a which owns a hosiery mill would satisfy the board of directors of seven of the Brown- condition of the order, the stipulated situaing Hosiery Mills, and that the secretary and tion falls very far short of any such relatreasurer of the latter is a director and vice tion. Respondent's minority stockholding president of respondent, and that, except as and its single membership on a board of stated, respondent has no part in the man- seven of the Browning Mills in no manner agement or control of the Browning con- gives it such an advantageous position as cern; that respondent has no other interest its public representations state, and from or ownership in any other hosiery mill; that the stipulation it appears that even the its purchases from this mill in May and somewhat lower price it obtains on what it June, 1922, were 45 and 38 per cent., re- buys is not because of any proprietary inspectively, of the mill's total output, and fluence or control it has, but solely because thereafter, up to June, 1923, its monthly of its large purchases. The stipulated evipurchases of the mill's total output rang dence, far from showing compliance with ed from 27 to 5 per cent.; that respondent the order, manifests its flagrant violation. buys and sells hosiery manufactured by oth- The prayer of the petition is granted, and erg than the Browning Mills, and the latter it is ordered by the court that the respondsells its products also to jobbers, persons, ent, Pure Silk Hosiery Mills, Inc., its offiand firms other than respondent; that two cers, agents, and employees, do cease and of the styles handled by respondent were desist from carrying on the business of sellmade for it exclusively by the Browning ing hosiery in commerce among the several Hosiery Mills; that, owing to the large quan- states of the United States under a tradetity which respondent bought from the name or corporate name which includes the Browning Hosiery Mills, it is allowed "a word “Mills” in combination with the words somewhat better price on its purchases than “Pure Silk Hosiery," or words of like imis made by the Browning Hosiery Mills to

port, and from making representations other purchasers.”

through advertisements, circulars, corresIt is further stipulated that since the

pondence stationery, or in any manner whatCommission's order respondent has not dis

soever, designed to promote or otherwise continued the use of the word “Mills,” but

affect interstate commerce, that it is the that it has continued to advertise that it

owner of or controls a hosiery mill or mills, manufactures its hosiery, and continues to use and permanently display in its adver

or that the hosiery by it sold comes direct tising the words "Mill to Home,” and to ad

from manufacturer to purchaser, unless and vertise that it thus eliminates jobbers', wholesalers', and retailers' profits, as well

ates, or directly and absolutely controls a

ates, or direc as advertising overhead. and enables it to factory or mill wherein is made any and all sell to consumers at greatly less than usual hosiery by it sold or offered for sale under retail prices. If the condition of the or- such title or name, or by or through any der is not complied with by respondent's advertisement or other representation of acquirement of the Browning Hosiery Mills ownership of such a mill or factory.

3 F.(20) 107 ALL-AMERICAN OIL & GAS CO. v. CON- patch until the said well is completed to the NELLEE.

producing sand of this district, unless oil (Circuit Court of Appeals. Fifth Circuit. De and gas are found in paying quantities at cember 16, 1924. Rebearing Denied a lesser depth. . . Time is the esJanuary 31, 1925.)

sence of this contract, and the same shall No. 4281.

be null and void and of no effect unless said

party of the second part shall begin the 1. Damages 120(3)–Measure of damages

drilling of the well as provided however, on for breach of contract to drill oil well held its reasonable cost.

or before 100 days of the date hereof." For breach of a contract by defendant, as After the execution of the contract the lessee, to drill an oil well on the tract, plain- time for beginning the drilling of a well tiff held entitled to recover the reasonable cost was, for a valuable consideration received of drilling such a well as the contract called

by plaintiff, extended 30 days.
hy 'nlain

The petifor.

tion alleged that defendant erected a der2. Damages 78(1)-Provision of contract

rick on the leased land, but wholly failed to held for a penaity, and not liquidated dam.

drill a well thereon. Pursuant to a written ages.

nd. stipulation of the parties the case was tried A provision of a contract that, if defend- Su

The court ant failed to drill an oil well as required by its by the court without a jury. terms, the contract should be "null and void made the following findings: and of no effect," was for the benefit of the “(1) The court finds that parties entered other party, and did not evidence an intention in

into the contract declared on in plaintiff's to make a forfeiture by defendant of its rights under the contract, the sole consequence of its petition as alleged therein. breach, and to exempt it from liability for dam “(2) The court finds that defendant ages sustained by the other party.

breached the contract, as alleged in plain

tiff's petition, and that plaintiff is entitled In Error to the District Court of the to recover damages herein for the amount of United States for the Northern District of the reasonable value of cost of drilling a Texas; James Clifton Wilson, Judge. well on the land described in plaintiff's peti

Action at law by C. U. Connellee against tion, less the reasonable cost or value of the the All-American Oil & Gas Company. salvage or material that could be saved Judgment for plaintiff, and defendant therefrom, and less the reasonable value of brings error. Affirmed.

the derrick erected on the 45 acres leased by Mike E. Smith, of Fort Worth, Tex.

the defendant, and that the amount which (Slay, Simon & Smith, of Fort Worth, Tex.,

plaintiff is entitled to recover, after making on the brief), for plaintiff in error.

due allowance for the items last above menJohn Sayles, of Eastland, Tex., for de

tioned, is the sum of $19,500... .

“(3) The court finds the evidence disclosed fendant in error.

no material difference in the value of the Before WALKER and BRYAN, Circuit 45-acre lease at the time the contract was Judges, and DAWKINS, District Judge. made, and at the time of the breach there

of by the defendant, the time of said breach WALKER, Circuit Judge. This was an being at the end of the 130 days from the action by the defendant in error (herein date of said contract, which includes the called plaintiff) to recover damages for the 100-day period of the original contract and breach of a written contract between him the 30 days' extension granted by the plainand the plaintiff in error (herein called de- tiff.fendant). By the contract sued on plaintiff The rulings of the court that plaintiff was assigned to defendant an oil and gas lease entitled to recover, and as to the measure on a described 45-acre tract of land, subject of damages recoverable, are duly presented to oil and gas royalties reserved to the lessor for review. landowner and to plaintiff. That contract [1] In behalf of the defendant it was contained the following provisions:

contended that the plaintiff, on the facts "It is further understood and agreed that, found, was not entitled to recover as damI in consideration of this transfer of the first ages an amount ascertained in the manner

party's interest in said lease, the second adopted by the court. By the contract the party shall within 50 days from the date plaintiff acquired the right to have a well hereof erect a derrick, and shall within 100 drilled by defendant on the leased land as days from the date hereof begin the drilling stipulated. A result of defendant's failure of a well for oil and gas on the 45 acres of to do what it contracted to do was to make land above described, and continue said it liable to the plaintiff for the amount of drilling with reasonable diligence and dis- the reasonable cost of having that done

which the defendant obligated itself to do. $ 428914jj), on which an order for deportation The plaintiff's right to recover the amount

was based, is not conclusive on the courts, if

it is shown that the authority was abused, or of the reasonable cost of that to which the not fairly exercised, or that there was an abuse contract entitled him was not dependent on of discretion. his proving that the value of the lease, or 2. Aliens 54-Order for deportation must of plaintiff's interest therein, would have be supported by evidence. been enhanced if defendant had drilled a The decision on which an order of deportawell pursuant to the contract. Lawton v. tion is based must be made after a hearing, in Fitchburg Railroad Co., 8 Cush. (Mass.)

good faith, and be supported by adequate evi

dence, which justifies the order under the rea230, 54 Am. Dec. 753; Lee v. Harris, 85 son assigned therefor. Conn. 212, 82 A. 186; Ardizonne v. Archer, 72 Okl. 70, 178 P. 263; Covington Oil Co. v.

3. Aliens 53–Deportation on ground that

alien was likely to become a public charge at Jones (Tex. Civ. App.) 244 S. W. 287. The the time of admission not warranted. defendant has no tenable ground of com That a young man, literate, sound in mind plaint because of the method adopted by the and body, who was regularly admitted as an imcourt in fixing the amount of its award.

migrant three years prior to his arrest, who

has since been industrious, and earned good [2] Evidently the provision that the con

wages, and who has otherwise been well-betract "shall be null and void and of no ef- haved, pleaded guilty to a single violation of fect unless" defendant shall begin the drill- the National Prohibition Act (Comp. St. Ann. ing of the well within the stipulated time Supp. 1923, & 1013844 et seq.), for which he was not intended to be one for liquidated

otod has been punished, does not warrant his depor

u tation on the ground that at the time of entry damages. The language used fairly im- he was likely to become a public charge. ports a penalty for a specified breach of the contract by the defendant. Brown-Crum- Appeal from the District Court of the mer Co. v. W. M. Rice Const. Co. (C. C. United States for the Eastern District of A.) 285 F. 673. The provision was for the Texas; W. Lee Estes, Judge. protection and benefit of the plaintiff. Petition of Francesco Paolo Lisotta, alias Leatherman v. Oliver, 151 Pa. 646, 25 A. Frank Lisotta. for writ of habeas corpus. 309; Wills v. Manufacturers', etc., Gas Co., From a decree denying the writ, petitioner 130 Pa. 222, 18 A. 721, 5 L. R. A. 603. Cer- appeals. Reversed and remanded. tainly the language of the provision does not evidence a purpose to make a forfeiture

M. G. Adams, of Beaumont, Tex., for apby the defendant of its rights under the pe lease the sole consequence of its breach of S. D. Bennett, Asst. U. S. Atty., of Beauits obligation, and to exempt it from liability to plaintiff for damages sustained by Before WALKER and BRYAN, Circuit the latter in consequence of a well not be- Judges, and CLAYTON, District Judge. ing drilled as stipulated in the contract. That provision did not give the defendant

CLAYTON, District Judge. On August the option to put an end to the obligation 14, 1924, the appellant, Francesco Paolo of the contract by breaching it and, by do. Lisotta, filed his petition in the United ing so, to deprive the plaintiff of the right States District Court, Eastern District of to recover damages for failing to get that Texas, for the writ of habeas corpus and to which the contract entitled him.

for his discharge from the arrest and detenThe conclusion is that there was no error tion by E. R. Dilworth, the Immigrant Inin the rulings complained of. The judg- S)

spector at Port Arthur, Tex. ment is affirmed.

The Inspector, in his answer to the petition, admitted that he held Lisotta, now the appellant here, at Beaumont, Tex., under

& warrant of arrest dated June 10, 1924, LISOTTA V. UNITED STATES. and under a warrant for deportation dated (Circuit Court of Appeals, Fifth Circuit. De

July 26, 1924; the warrants having been iscember 13, 1924.)

sued by the Second Assistant Secretary of

Labor and against Lisotta as an alien. The No. 4435.

first one commanded that the Inspector 1. Aliens am 54_Finding of grounds for do. "take into custody the said alien (Lisotta] portation by department not conclusive.

and grant him a hearing to enable him to A finding by the Department of Labor that show cause why he should not be deported an alien, regularly admitted as an immigrant, : was at the time of his entry likely to become in conformity with law." No complaint is a public charge, within Act Feb. 5, 1917, § 19 made before us that such hearing was not (Comp. St. 1918, Comp. St. Ann. Supp. 1919, had before the immigrant inspector.

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