3 F.(2d) 269

The contention that the immigration authorities required a higher degree of proof than a preponderance of the evidence is not well founded. From the record, considered as a whole, it appears that the immigration authorities were not at variance with the District Court in applying the rule that applicants had no greater burden than to sustain their right to enter by a preponderance of the evidence.

As there is no valid ground for disturbing the final orders of the lower court, they are affirmed.

PENNSYLVANIA R. Co. v. BERCK-
HEIMER.

their own momentum, down the incline track to be placed on classification track 5. While the cars were in motion Berckheimer, in attempting to pass from one car to another, fell between the cars and was severely injured.

Action was brought by Berckheimer to recover damages for these injuries, which he alleged were caused solely and directly by reason of the negligence of the Pennsylvania Railroad Company in failing to keep and maintain a brake step securely fastened to the body of one of these cars in violation of the Safety Appliance Act (Comp. St. § 8605 et seq.), in failing to make a reasonable and proper inspection to ascertain the defective condition of this car, and in failing to warn plaintiff of the defect. These averments of negligence were denied The jury re

(Circuit Court of Appeals. Sixth Circuit. Jan- by the railroad company.

uary 5, 1925.)

No. 4099.

Trial 260 (8)-Instructions held properly refused, as covered by the charge given. Instructions requested in railway brakeman's action for injuries as to facts necessary to recovery held properly refused, on the ground that they were fully covered by the charge given.

In Error to the District Court of the United States for the Eastern Division of the Northern District of Ohio; Paul Jones, Judge.

Action at law by C. A. Berckheimer against the Pennsylvania Railroad Company. Judgment for plaintiff, and defendant brings error. Affirmed.

turned a verdict in favor of the plaintiff, upon which verdict judgment was entered by the District Court.

Evidence was offered on the part of the plaintiff tending to prove that the brake wheel on the lead car was on the rear or west end, and that the brake wheel on the rear car was at the front or east end, as these cars were then positioned upon the track; that in the discharge of his duties as brakeman it became necessary for him to step from the roof of the second car to the brake footboard or brake step upon the rear end of the first car; that this brake step was defective, and that by reason of its defective condition it tilted or gave way under him, causing him to fall between the cars. Evidence was offered upon the part of the railroad company tending to prove that the first car of this cut was in good condition; that the brake on the second car was at the rear or west end, and that, while four nuts were missing from the footboard and a nut was missing from the brake ratchet, nevertheless this brake step could not have tilted or given way with plaintiff Before DENISON, MACK, and DONA- without splitting the step in two; and that HUE, Circuit Judges.

Norman A. Emery, of Youngstown, Ohio (Harrington, De Ford, Huxley & Smith, of Youngstown, Ohio, on the brief), for plaintiff in error.

Luther Day, of Cleveland, Ohio (Day & Day and Robert H. Dawson, all of Cleveland, Ohio, on the brief), for defendant in

error.

DONAHUE, Circuit Judge. The defendant in error, C. A. Berckheimer, had been in the employ of the Pennsylvania Railroad Company as a brakeman, for about 13 years. Between 1 and 2 o'clock on the morning of August 20, 1922, Berckheimer, in the course of his employment was required to ride two box cars down the hump track in the railroad company's yards at Juniata, Pa. These cars had been cut loose from the train and were moving east, by

shortly following the accident this step was not tilted or split, and was safe to stand upon. The railroad company also introduced evidence tending to prove that the plaintiff's condition after the accident was not due to injuries, but to an attack of apoplexy, followed by paralysis, and that plaintiff had probably fallen from the car by reason of this attack of apoplexy, and not because of any defect in the brake step.

No exceptions were taken to the charge but after the charge was given counsel for the railroad company requested the court to

(Circuit Court of Appeals, Seventh Circuit. establishment at No. 258. Investigation

3 F.(2d) 271

means for entering or leaving the basement under 256, wherein the home-brew was being made, was a trapdoor in the floor of the rear room of 256, which was part of the Heggi establishment.

[2] Defendants testified that the beer was being made by a man who boarded and roomed with Heggi, and that neither of the defendants had anything whatever to do with it; but they testified that for months they had been taking and selling in No. 258 of this very beer as much as 25 cases weekly. One of the men who was on the truck which was delivering the beer at the hotel proved to be a regular employee on weekly wages of the Heggi place, but he testified he had nothing to do with the delivery of the beer, but was merely taking a ride down town on the truck, at a time of the day when it would be expected he would be attending to the duties for which he was employed at Heggi's. One witness testified that when the beer was being destroyed Kasuba said they were "using quite a bit at the place, and the rest are selling out; we have a few customers," and that Heggi was his partner. This statement was, of course, competent against him, but not against Heggi, and the court so instructed the jury.

Quite apart from the admitted fact that for a number of months these men afforded an outlet for the disposal of this concededly illicit beer, which to their admitted knowledge was being made in the place described, the evidence fairly raised the issue whether or not they were interested in the manufacture and transportation of all this beer, including that taken to the hotel, and this question of fact was determined adversely to them.

Some other propositions were argued in support of highly technical allegations of error, but we find no merit in them, and nothing wherefor the judgment should be reversed. It is accordingly affirmed.

In re B. T. WISE FURNITURE CORPORA-
TION.

WISE v. WOLCOTT.

and also for the note of an individual, on both of which notes he was indorser. Bankrupt executed a note to him for the value of the collateral, payable in the event it was lost, the collateral was sold and the proceeds applied in payment of the individual note, and the balance credited on bankrupt's note, the remainder bethat claimant was not entitled to prove his ing unpaid and proved against the estate. Held, note as a claim against the estate.

Appeal from the District Court of the United States for the Eastern District of Virginia, at Norfolk; D. Lawrence Groner, Judge.

In the Matter of B. T. Wise Furniture Corporation, bankrupt. W. P. Wise appeals from an order disallowing its claim. Affirmed.

Harry K. Wolcott, of Norfolk, Va. (Wolcott, Wolcott & Lankford, of Norfolk, Va., on the brief), for appellant.

Frank C. Miller, of Norfolk, Va., for appellee.

Before WOODS, WADDILL, and ROSE, Circuit Judges.

WADDILL, Circuit Judge. The appeal in this case presents the single question of whether the appellant is entitled to prove a claim against the bankrupt's estate asserted by him for $18,000. The referee in bankruptcy and the District Court decided adversely to the appellant's contention.

The facts, while somewhat unusual, are comparatively simple. On the 5th of September, 1923, the bankrupt corporation, by B. T. Wise, president, executed its demand note, payable to the order of W. P. Wise, for $18,000, negotiable and payable at the National Bank of Commerce, Norfolk, Va. On the note was the following memorandum, signed by W. P. Wise: "It is understood that this note is only payable in the event of loss of collateral amounting to the above amount or pro rata amount." The loss of the collateral is made apparent by the development of the facts in the case, which are substantially as follows:

In September, 1923, the National Bank of Commerce held the personal note of B. T. Wise, president of the bankrupt corporation, for $15,000, and also notes of the corporation for $30,000, one for $10,000, and

(Circuit Court of Appeals, Fourth Circuit. the other for $20,000, all of which obliga

December 20, 1924.)
No. 2282.

Bankruptcy 316(3)-Indorser's claim held properly disallowed.

Claimant deposited collateral with a bank as security for a note of bankrupt corporation,

the bankrupt's estate for the amount that the proceeds arising from the sale of his collateral was used to pay such corporate debts.

The decree of the District Court will be affirmed, with costs. Affirmed.

to his father, the latter, in order to render prefer a claim as a general creditor against assistance to the son and to the bankrupt corporation, deposited with the National Bank of Commerce collateral securities valued at $18,300. The bank thereupon allowed the corporate and individual notes to remain unpaid, and the bankrupt corporation executed the note upon which the claim in suit is based. Subsequently two payments on the corporate indebtedness were made, reducing the same to $17,413, with interest, for which the bank is now asserting its claim in the bankruptcy proceedings. The collateral was sold, and the proceeds applied first to the individual indebtedness of B. T. Wise, and the surplus credited on the corporate indebtedness.

The bank's right so to dispose of the collaterals is raised here, and the appellant insists that the result of what occurred is that he lost his collateral, and therefore he is entitled to prove his note for the $18,000 given him as aforesaid. In the testimony adduced before the referee, appellant denies that he indorsed the individual note of his son for $15,000 to the bank, and insists that the collateral was deposited only on account of the corporation indebtedness, and that the bank was without authority to apply the proceeds of the collateral to such individual note.

The bank strenuously controverted this statement, as well regarding the indorsement of the individual obligation of his son, as that of the right to pay the proceeds of the collaterals to his individual note. The son sustained the contention of the father as to the condition on which the collateral was deposited, though, so far as the indorsement by the appellant of both the individual and partnership notes is concerned, there seems to be no question, as his counsel in argument concedes the fact, as he does apparently that the purpose of the deposit of the collateral was to render financial assistance as well to the son as to the bankrupt corporation.

This conflict of testimony was passed upon by both the referee and the District Judge, and correctly so as the testimony appears to us, and certainly there is nothing that would warrant our rejecting the findings of both the referee and of the District Court in respect thereto. Upon this statement of facts, the right of the appellant to prove an indebtedness for the notes in question, cannot be maintained. Until the corporation indebtedness to the bank for which appellant is responsible has been paid in full, it is unnecessary to discuss the question of whether or not he would be entitled to

PASZKIEWICZ et al. v. UNITED STATES. (Circuit Court of Appeals, Seventh Circuit. October 25, 1924.)

No. 3432.

1. Bankruptcy 494-Indictment charging fraudulent concealment of property held not defective in failing to charge property belonged to trustee.

Indictment charging conspiracy to conceal property from trustee in bankruptcy held not defective because it alleged that property belonged to bankrupts instead of trustee.

2. Bankruptcy496-Failure to show what became of bankrupts' property held to present jury question whether bankrupts conspired to conceal property.

In prosecution for conspiracy to conceal bankrupts' assets from trustee, accused's fail

ure to show on their books what became of

large amount of merchandise held to present question for jury whether they conspired to conceal such merchandise from trustee.

EVAN A. EVANS, Circuit Judge. fendants, convicted upon a charge of conspiring to unlawfully conceal, while bankrupts, assets from the trustee in bankruptcy, assign error in the rulings of the trial court upon (a) the indictment; (b) the motion to dismiss; and (c) instructions to the jury.

[1] It is charged that they "unlawfully, knowingly, and fraudulently should conceal from the said trustee in bankruptcy of and for the bankrupt estate aforesaid, said property belonging to the said copartnership, to

3 F.(2d) 273

was

charge respecting the option sale erroneous and prejudicial, because it invited the attention of the jury to other misdeeds of defendants not in any way connected with the offense charged in the indictment. This assignment must be rejected, not only for want of proper exceptions, but because the facts and circumstances disclosed by the testimony in this case made such references to the Illinois bulk sales statutes pertinent and proper.

wit," etc. Defendants say the indictment should have charged that the property concealed belonged to the "trustee in bankruptcy"; otherwise, no offense is stated. We think this objection hypercritical. Doubtless the title to the property would pass to the trustee in bankruptcy upon an adjudication in bankruptcy, but it is clear that the pleader, by the words "belonging to the said copartnership," charged that the property belonged to the partnership up to the time it passed to the trustee by operation of law. Steigman v. United States, 220 F. 66, 135 C. C. A. 631; United States v. Cohn (C. C.) 142 F. 983; United States v. Comstock (C. C.) 161 F. 644. The conspiracy, of course, preceded the bankruptcy. It is so alleged in another part of the indictment. At the time the unlawful conspir- (Circuit Court of Appeals, Seventh Circuit.

acy was formed, legal title to the property was in the bankrupts.

It is also alleged that at such date defendants "anticipated and expected that an involuntary petition in bankruptcy would be filed by certain creditors, and that thereafter the said defendants would be adjudged bankrupts upon said proceedings," and that a "trustee in bankruptey would be duly appointed," etc. It was unnecessary to allege what is a mere conclusion of law, that the property of the bankrupts became the property of the trustee in bankruptcy when such trustee was appointed.

[2] Defendants' next contention is that a fatal variance between pleading and proof exists. It is conceded that the evidence may have been sufficient to show concealment of a large sum of money (the proceeds of the sale of the hardware stock), but it fails to show, so it is urged, a concealment of the property specifically described in the indict

ment.

The judgment is affirmed.

KUSH v. DAVIS, Secretary of Labor, et al.

December 10, 1924.)

No. 3458.

1. Aliens 54- Evidence held sufficient to warrant alien's deportation for circulating literature prohibited by statute.

Evidence of alien's knowledge of contents of literature held sufficient to warrant his deportation for circulating literature prohibited by statute.

2. Aliens 54-Defects In deportation warrant held not to require alien's discharge where sufficient grounds for detention shown.

Defects in deportation warrant, resulting from use of blank forms to fit many conditions and failure to make changes so that blank would fit case involved, held not to require alien's discharge, where sufficient grounds for his detention were shown.

Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois.

Habeas corpus by Blais F. Kush against James J. Davis, Secretary of Labor, and others. From an order dismissing the writ, petitioner appeals. Affirmed.

David J. Bentall, of Chicago, Ill., for appellant.

James A. O'Callaghan, of Chicago, Ill., for appellees.

Before ALSCHULER, EVANS, and PAGE, Circuit Judges.

We think the testimony presents a jury question as to the concealment of the stock of merchandise. The failure of defendants to show on their books what became of this large amount ($17,000) of merchandise, coupled with the other evidence, created an issue which the jury was called upon to determine, viz. whether or not defendants conspired to conceal such merchandise from the trustee. The government's case might have been stronger had the indictment charged defendants with concealing the $17,000 stock of merchandise and concealing the cash realized by bankrupts from its sale. But the proof was sufficient to support a verdict of guilty on either charge. Defendants also contend that the court's ute. 3 F. (2d)-18

PAGE, Circuit Judge. This appeal is to reverse an order of the District Court, dismissing a writ of habeas corpus, brought to test the sufficiency of a warrant for the deportation of appellant.

It is admitted that appellant is an alien, and that the literature found in his possession was of a kind prohibited by the stat