that any such right of action would, under the declaration, inure to this unique entity created by the statute, and not to its agent, the attorney in fact. We conclude that the demurrer to the amended declaration was properly sustained, and the judgment is therefore affirmed. FORD et al. v. UNITED STATES. C. B. Kennamer, U. S. Atty., of Guntersville, Ala., and Jim C. Smith, Asst. U. S. Atty., of Birmingham, Ala. Judges, and ESTES, District Judge. BRYAN, Circuit Judge. This is a prosecution under section 97 of the Criminal Code (Comp. St. § 10265). The first count of the indictment, after describing the defendants 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.) No. 4425. 1. Embezzlement 29, 30-Allegation of ownership or value held unnecessary in indictment for embezzlement by internal revenue officer. In an indictment under Criminal Code, § 97 (Comp. St. § 10265), against officers in the internal revenue service for embezzlement and conversion of liquor seized by them as such officers, it is unnecessary to allege the ownership or value of the liquor. 2. Witnesses 361 (1)—Testimony as to good character should be directed to reputation. A question as to the good character of a witness should be directed to his general reputation for some particular trait of character, and not to the personal knowledge of the witness testifying. 3. Witnesses 361 (1)—Character of a witness does not become an issue unless it is attacked. The character of a witness does not become an issue in a case unless and until it is attacked, and a mere contradiction of his testimony is not such an attack. 4. Witnesses 361 (1)-Testimony of character witnesses held inadmissible. Testimony of character witnesses introduced simply to add weight to the testimony of a witness who has been contradicted, but whose character has not been attacked, is inadmissible. In Error to the District Court of the United States for the Northern District of Alabama; William I. Grubb, Judge. Criminal prosecution by the United States against William B. Ford and others. Judg ment of conviction, and defendants bring error. Reversed, with directions for new trial. J. J. Curtis, of Jasper, Ala., and M. C. Stewart, of Birmingham, Ala. (Coleman, Coleman, Spain & Stewart, of Birmingham, Ala., and Curtis, Pennington & Pou, of Jasper, Ala., on the brief), for plaintiffs in error. charges that they did "unlawfully, wrongfully, and feloniously convert to their own use, and embezzle, certain property which had come into their possession and under their control in the execution of their said offices aforesaid, and under color and claim of authority as such officers aforesaid, to wit, a large quantity of intoxicating liquor, to wit, 153 quarts of whisky." The second count is similar to the first, except that it alleges that the property was in the possession of one of the defendants, and was converted by all of them to their own use. A demurrer to these two counts, on the grounds that the ownership and value of the whisky are not alleged, was overruled. During the trial R. B. Doe, who was employed as a prohibition officer, and who in common with the defendants used and occupied several rooms in the federal building at Birmingham, testified for the government that he and the defendants took some liquor which had been seized and stored, and related conversations which he claims he had with the defendants indicating their guilt. The defendants, testifying in their own behalf, denied their guilt, denied the conversations related by Doe, and in addition gave testimony which indicated Doe's guilt; but they offered no other testimony which could be construed as an attack upon Doe's character. In rebuttal, the government was permitted, over the objection of the defendants, to introduce the testimony of several witnesses to the effect that Doe's character was good and that they would believe him on oath. The questions calling for this testimony were so framed as to invite answers relating to Doe's character generally, and were not limited to any particu lar trait of character. The defendants were convicted on the first, second, and several other counts of the indictment. The overruling of the demurrer to the first and second counts, and the ruling of the court admitting testimony as to the good character of the witness Doe, are assigned as error. 3 F.(2d) 105 [1] An allegation of ownership of property stolen or embezzled is usually required in indictments, not because ownership is material, but for the purpose of identification, so that a defendant may prepare his defense and protect himself against a subsequent prosecution for the same offense. An allegation that the owner was unknown would have been sufficient in this case, and, it may be conceded, would have made the indictment better. But we think the challenged counts are sufficient, as the defect is at most one of form only. The property could not have been that of the defendants, or any of them, and whether it belonged to the United States, or some person other than the defendants, was immaterial. It came into 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. Hoback v. United States (C. C. A.) 284 F. 529, [2, 3] The questions which elicited the evidence of Doe's good character were not in proper form. The inquiry, if admissible, should have been directed to general reputation for some particular trait of character; for it is such reputation, and not personal knowledge, which is admissible for the purpose of proving character. But, assuming that the questions were proper, we are of opinion that it was prejudicial error to admit the testimony. Although there is a conflict in the authorities, we think the better rule is that the character of a witness does not become an issue in the case unless and until it is attacked. A contradiction of testimony, although irreconcilable, is not an attack upon the character of the witness who gave it. The admission of character evidence to sustain one witness, who has not lowed by this court in Foster v. United States, 256 F. 207, 167 C. C. A. 423, in an opinion by the able District Judge who tried the case at bar. Upon further consideration we are constrained to overrule that decision upon the question here and now involved. Inasmuch as it will be necessary to order a new trial, it is proper to say that we have examined the remaining assignments of error, which relate to rulings upon evidence, upon requests by the defendants for instructions, which were refused, and that in our opinion there was no error in any of such rulings. The judgment is reversed, with directions for a new trial. FEDERAL TRADE COMMISSION v. PURE No. 3456. Trade-marks and trade-names and unfair competition 802, New, vol. 8A Key-No. Series-Corporation held not to have complied with order prohibiting use of word "mills" until it operated factory or mills. Acquisition by corporation of less than onesixth of outstanding stock of hosiery mill and the placing of one of its officers as one of seven directors of such mill was not a compliance with order of Federal Trade Commission, pursuant to Act Cong. Sept. 26, 1914 (Comp. St. $8836a et seq.), requiring it to cease using a name including word "mills" until it actually owned or operated a factory or mills. Application for Enforcement of an Order of the Federal Trade Commission. Application by Federal Trade Commis been impeached, would require the admis- sion for enforcement of order made by it directed to the Pure Silk Hosiery Mills, Inc. Petition granted, and restraining order allowed. sion of like evidence to sustain all such witnesses. Such evidence would lead to a confusion of issues, and might easily result in injustice whenever a prominent witness, whose reputation is well known, is contradicted by an obscure witness, whose reputation is unknown, or not so well known. [4] By the great weight of authority, as well as upon principle, as it appears to us, testimony of character witnesses, introduced simply to add weight to the testimony of a witness who has been contradicted, but whose character has not been attacked, is inadmissible. L. & N. R. R. Co. v. McClish, 115 F. 268, 53 C. C. A. 60; 1 Greenleaf, $ 469a; 2 Wigmore (2d Ed.) § 1109, and cases there cited. The contrary rule was fol James T. Clark, of Washington, D. C., for petitioner. Joseph A. McInerney, of Chicago, Ill., for respondent. Before ALSCHULER, EVANS, and PAGE, Circuit Judges. ALSCHULER, Circuit Judge. Pursuant to Act of Congress approved September 26, 1914 (Comp. St. § 8836a et seq.), the Federal Trade Commission applies to this court for enforcement of an order by it made directing that "respondents cease and desist from carrying on the business of selling hosiery in commerce among the several states of the United States, under a trade-name or corporate name which includes the word 'Mills,' in combination with the words 'Pure Silk Hosiery,' or words of like import, unless and until such respondents, or either of them, actually owns or operates a factory or mills in which hosiery sold by them, or either of them, is manufactured." The nature of the charge may well be inferred from the order itself, but upon presentation of the petition to this court the facts with which we have to deal were stipulated between petitioner, and respondent. From the stipulation it appears that respondent has acquired and owns 240 out of a total of 1,363 shares of the outstanding capital stock of the Browning Hosiery Mills, a Tennessee corporation, having hosiery mills at Chattanooga; that the respondent's secretary and treasurer is one of a board of directors of seven of the Browning Hosiery Mills, and that the secretary and treasurer of the latter is a director and vice president of respondent, and that, except as stated, respondent has no part in the management or control of the Browning concern; that respondent has no other interest or ownership in any other hosiery mill; that its purchases from this mill in May and June, 1922, were 45 and 38 per cent., respectively, of the mill's total output, and thereafter, up to June, 1923, its monthly purchases of the mill's total output ranged from 27 to 5 per cent.; that respondent buys and sells hosiery manufactured by others than the Browning Mills, and the latter sells its products also to jobbers, persons, and firms other than respondent; that two of the styles handled by respondent were made for it exclusively by the Browning Hosiery Mills; that, owing to the large quantity which respondent bought from the Browning Hosiery Mills, it is allowed "a somewhat better price on its purchases than is made by the Browning Hosiery Mills to other purchasers." It is further stipulated that since the Commission's order respondent has not discontinued the use of the word "Mills," but that it has continued to advertise that it manufactures its hosiery, and continues to use and permanently display in its advertising the words "Mill to Home," and to advertise that it thus eliminates jobbers', wholesalers', and retailers' profits, as well as advertising overhead, and enables it to sell to consumers at greatly less than usual retail prices. If the condition of the order is not complied with by respondent's acquirement of the Browning Hosiery Mills stock, it is frankly conceded that there has been no compliance with the Commission's order, and practically no other reason is here advanced for respondent against granting the prayer of the petition. That the acquirement of slightly more than one-sixth of the stock of an incorporated hosiery mill is compliance with the condition of the order that it actually "owns or operates a factory or mills in which hosiery sold by them is manufactured" is startling in its very statement. If the holding of this small minority of stock can justify public representation that respondent owns and operates the mills wherein its hosiery is made, then like representation could be justified by the ownership of any number of shares less than 240. But if, in any event, ownership by respondent of a majority or even all the stock of another corporation which owns a hosiery mill would satisfy the condition of the order, the stipulated situation falls very far short of any such relation. Respondent's minority stockholding and its single membership on a board of seven of the Browning Mills in no manner gives it such an advantageous position as its public representations state, and from the stipulation it appears that even the somewhat lower price it obtains on what it buys is not because of any proprietary influence or control it has, but solely because of its large purchases. The stipulated evidence, far from showing compliance with the order, manifests its flagrant violation. The prayer of the petition is granted, and it is ordered by the court that the respondent, Pure Silk Hosiery Mills, Inc., its officers, agents, and employees, do cease and desist from carrying on the business of selling hosiery in commerce among the several states of the United States under a tradename or corporate name which includes the word "Mills" in combination with the words "Pure Silk Hosiery," or words of like import, and from making representations through advertisements, circulars, correspondence stationery, or in any manner whatsoever, designed to promote or otherwise affect interstate commerce, that it is the owner of or controls a hosiery mill or mills, or that the hosiery by it sold comes direct from manufacturer to purchaser, unless and until the respondent actually owns and operates, or directly and absolutely controls a factory or mill wherein is made any and all hosiery by it sold or offered for sale under such title or name, or by or through any advertisement or other representation of ownership of such a mill or factory. ALL-AMERICAN OIL & GAS CO. v. CON- patch until the said well is completed to the producing sand of this district, unless oil and gas are found in paying quantities at a lesser depth. Time is the es NELLEE. (Circuit Court of Appeals, Fifth Circuit. De cember 16, 1924. Rehearing Denied January 31, 1925.) No. 4281. 1. Damages 120 (3)-Measure of damages sence of this contract, and the same shall be null and void and of no effect unless said party of the second part shall begin the for breach of contract to drill oil well held drilling of the well as provided however, on its reasonable cost. 2. Damages 78(1)-Provision of contract held for a penaity, and not liquidated damages. A provision of a contract that, if defendant failed to drill an oil well as required by its terms, the contract should be "null and void and of no effect," was for the benefit of the other party, and did not evidence an intention to make a forfeiture by defendant of its rights under the contract, the sole consequence of its breach, and to exempt it from liability for damages sustained by the other party. In Error to the District Court of the United States for the Northern District of Texas; James Clifton Wilson, Judge. Action at law by C. U. Connellee against the All-American Oil & Gas Company. Judgment for plaintiff, and defendant brings error. Affirmed. Mike E. Smith, of Fort Worth, Tex. (Slay, Simon & Smith, of Fort Worth, Tex., on the brief), for plaintiff in error. John Sayles, of Eastland, Tex., for de fendant in error. Before WALKER and BRYAN, Circuit Judges, and DAWKINS, District Judge. WALKER, Circuit Judge. This was an action by the defendant in error (herein called plaintiff) to recover damages for the breach of a written contract between him and the plaintiff in error (herein called defendant). By the contract sued on plaintiff assigned to defendant an oil and gas lease on a described 45-acre tract of land, subject to oil and gas royalties reserved to the lessor landowner and to plaintiff. That contract contained the following provisions: "It is further understood and agreed that, in consideration of this transfer of the first party's interest in said lease, the second party shall within 50 days from the date hereof erect a derrick, and shall within 100 days from the date hereof begin the drilling of a well for oil and gas on the 45 acres of land above described, and continue said drilling with reasonable diligence and dis or before 100 days of the date hereof." After the execution of the contract the time for beginning the drilling of a well was, for a valuable consideration received by plaintiff, extended 30 days. The petition alleged that defendant erected a derrick on the leased land, but wholly failed to drill a well thereon. Pursuant to a written stipulation of the parties the case was tried by the court without a jury. The court made the following findings: "(1) The court finds that parties entered into the contract declared on in plaintiff's petition as alleged therein. "(2) The court finds that defendant breached the contract, as alleged in plaintiff's petition, and that plaintiff is entitled to recover damages herein for the amount of the reasonable value of cost of drilling a well on the land described in plaintiff's petition, less the reasonable cost or value of the salvage or material that could be saved therefrom, and less the reasonable value of the derrick erected on the 45 acres leased by the defendant, and that the amount which due allowance for the items last above menplaintiff is entitled to recover, after making tioned, is the sum of $19,500.• "(3) The court finds the evidence disclosed no material difference in the value of the 45-acre lease at the time the contract was made, and at the time of the breach thereof by the defendant, the time of said breach being at the end of the 130 days from the date of said contract, which includes the 100-day period of the original contract and the 30 days' extension granted by the plaintiff." The rulings of the court that plaintiff was entitled to recover, and as to the measure of damages recoverable, are duly presented for review. [1] In behalf of the defendant it was contended that the plaintiff, on the facts found, was not entitled to recover as damages an amount ascertained in the manner adopted by the court. By the contract the plaintiff acquired the right to have a well drilled by defendant on the leased land as stipulated. A result of defendant's failure to do what it contracted to do was to make it liable to the plaintiff for the amount of the reasonable cost of having that done which the defendant obligated itself to do. The plaintiff's right to recover the amount of the reasonable cost of that to which the contract entitled him was not dependent on his proving that the value of the lease, or of plaintiff's interest therein, would have been enhanced if defendant had drilled a well pursuant to the contract. Lawton v. Fitchburg Railroad Co., 8 Cush. (Mass.) 230, 54 Am. Dec. 753; Lee v. Harris, 85 Conn. 212, 82 A. 186; Ardizonne v. Archer, 72 Okl. 70, 178 P. 263; Covington Oil Co. v. Jones (Tex. Civ. App.) 244 S. W. 287. The defendant has no tenable ground of complaint because of the method adopted by the court in fixing the amount of its award. [2] Evidently the provision that the contract "shall be null and void and of no effect unless" defendant shall begin the drilling of the well within the stipulated time was not intended to be one for liquidated damages. The language used fairly imports a penalty for a specified breach of the contract by the defendant. Brown-Crummer Co. v. W. M. Rice Const. Co. (C. C. A.) 285 F. 673. The provision was for the protection and benefit of the plaintiff. Leatherman v. Oliver, 151 Pa. 646, 25 A. 309; Wills v. Manufacturers', etc., Gas Co., 130 Pa. 222, 18 A. 721, 5 L. R. A. 603. Certainly the language of the provision does not evidence a purpose to make a forfeiture by the defendant of its rights under the lease the sole consequence of its breach of its obligation, and to exempt it from liability to plaintiff for damages sustained by the latter in consequence of a well not being drilled as stipulated in the contract. That provision did not give the defendant the option to put an end to the obligation of the contract by breaching it, and, by doing so, to deprive the plaintiff of the right to recover damages for failing to get that to which the contract entitled him. The conclusion is that there was no error in the rulings complained of. The judg ment is affirmed. LISOTTA v. UNITED STATES. § 42894jj), on which an order for deportation was based, is not conclusive on the courts, if it is shown that the authority was abused, or not fairly exercised, or that there was an abuse of discretion. 2. Aliens 54-Order for deportation must be supported by evidence. The decision on which an order of deportation is based must be made after a hearing, in good faith, and be supported by adequate evi dence, which justifies the order under the reason assigned therefor. 3. Aliens 53-Deportation on ground that alien was likely to become a public charge at the time of admission not warranted. That a young man, literate, sound in mind and body, who was regularly admitted as an immigrant three years prior to his arrest, who has since been industrious, and earned good wages, and who has otherwise been well-behaved, pleaded guilty to a single violation of the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 101384 et seq.), for which he tation on the ground that at the time of entry has been punished, does not warrant his deporhe was likely to become a public charge. Appeal from the District Court of the United States for the Eastern District of Texas; W. Lee Estes, Judge. Petition of Francesco Paolo Lisotta, alias Frank Lisotta, for writ of habeas corpus. From a decree denying the writ, petitioner appeals. Reversed and remanded. M. G. Adams, of Beaumont, Tex., for appellant. S. D. Bennett, Asst. U. S. Atty., of Beaumont, Tex. Before WALKER and BRYAN, Circuit Judges, and CLAYTON, District Judge. CLAYTON, District Judge. On August 14, 1924, the appellant, Francesco Paolo Lisotta, filed his petition in the United States District Court, Eastern District of Texas, for the writ of habeas corpus and for his discharge from the arrest and detention by E. R. Dilworth, the Immigrant Inspector at Port Arthur, Tex. The Inspector, in his answer to the petition, admitted that he held Lisotta, now the appellant here, at Beaumont, Tex., under a warrant of arrest dated June 10, 1924, and under a warrant for deportation dated (Circuit Court of Appeals, Fifth Circuit. De- July 26, 1924; the warrants having been is cember 13, 1924.) No. 4435. 1. Aliens 54-Finding of grounds for deportation by department not conclusive. A finding by the Department of Labor that an alien, regularly admitted as an immigrant, was at the time of his entry likely to become a public charge, within Act Feb. 5, 1917, § 19 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, sued by the Second Assistant Secretary of Labor and against Lisotta as an alien. The first one commanded that the Inspector "take into custody the said alien [Lisotta] and grant him a hearing to enable him to show cause why he should not be deported in conformity with law." No complaint is made before us that such hearing was not had before the immigrant inspector.. |