GARVIN, District Judge. This is a motion to set aside the verdict of a jury directed by the court in favor of libelant.

A libel was filed by the United States of America praying for a decree of forfeiture of 1,200 gallons of wine stored and possessed by Ralph B. Hershone in a store at 5227 New Utrecht avenue, borough of Brooklyn, city of New York, said possession being for religious and sacramental purposes, under a permit required by the Act of Congress of October 28, 1919, known as the National Prohibition Law (Comp. St. Ann. Supp. 1923, 8 101384 et seq.), the ground upon which forfeiture was demanded being an illegal sale or illegal sales of said wine. The government proved that on two separate occasions, one immediately following the other, on January 30, 1924, one gallon of wine was purchased at the premises in question, from the person in charge, without a suggestion that it was for use in religious rites. This, of course, was not legal under the permit. Each sale was a crime committed in the presence of agents of the government, who made the purchases in question, and under such circumstances the seizure was legal. No criminal prosecution and conviction of the owner is a prerequisite, under the statute, to

warrant forfeiture, nor must the permit have been revoked.

While this precise point is not squarely decided in U. S. v. American Brewing Co. (D. C.) 296 F. 772, the observations in the opinion therein, with respect to guilt attaching to the res, are in complete harmony with this conclusion. While no direct authority upon the latter proposition has been brought to my attention, section 25, title 2, of the National Prohibition Law (Comp. St. Ann. Supp. 1923, § 101381⁄2m) clearly provides

that under the facts of the case at bar there were no property rights in the wine. That section reads:

"It shall be unlawful to have or possess any liquor or property designed for the manufacture of liquor intended for use in violating this title or which has been so used, and no property rights shall exist in any such liquor or property. A search warrant may issue as provided in title XI of public law numbered 24 of the Sixty Fifth Congress, approved June 15, 1917, and such liquor, the containers thereof, and such property so seized shall be subject to such disposition as the court may make thereof. If it is found that such liquor or property was so unlawfully held or possessed, or had been so unlawfully used, the liquor, and all property designed for the unlawful manufacture of liquor, shall be destroyed, unless the court shall otherwise order. No search warrant shall issue to search any private dwelling occupied as such unless it is being used for the unlawful sale of intoxicating liquor, or unless it is in part used for some business purpose such as a store, shop, saloon, restaurant, hotel, or boarding house. The term 'private dwelling' shall be construed to include the room or rooms used and occupied not transiently but solely as a residence in an apartment house, hotel, or boarding house. The property seized on any such warrant shall not be taken from the officer seizing the same on any writ of replevin or other like process."

It is urged that the permit, unrevoked, is a sufficient defense to the government suit. Suffice it to say that the permit protects possession if the law is obeyed; then and then only. As soon as liquor is used for any purpose other than those set forth in the permit, it is as though the permit had never issued. Motion denied.

SELDEN v. LEE et al.

(Court of Appeals of District of Columbia. Submitted December 8, 1924. Decided January 5, 1925. Rehearing Denied January 24, 1925.) No. 4122.

1. Use and occupation 4-Purchasers could recover for use and occupation against vendor's tenant, holding over after expiration of term.

Purchasers, who refused to accept rent from vendor's tenant or to extend tenant's term, could recover for use and occupation for period during which tenant held over after expiration of his lease, under Code, § 1234.

2. Appeal and error 1035-That purchas ers' action against vendor's tenant, holding over after expiration of term, sounded in contract, and not in tort, was not prejudicial to tenant.

That purchasers' action against vendor's tenant, holding over after expiration of term, was brought in the form of an action ex contractu for use and occupation of premises, instead of action ex delicto in trespass for mesne profits, was not prejudicial to tenant.

3. Trial 141-Direction of verdict for plaintiffs not error, where sustained by undisputed

evidence.

The facts in the case appear virtually without dispute. On the 10th day of September, 1919, the appellant, Henry S. Selden, was a tenant in possession of a certain dwelling house in the District of Columbia, holding from month to month, and on that day the owner, being appellant's landlord, duly conveyed the property to the appellees, James E. Lee and Bertha Lee, his wife. The deed contained no reference to the tenancy of Selden but conveyed the full fee-simple estate in the premises, without reservation or stipulation. Three days afterwards, to wit, on September 13, 1919, the new owners served a notice to quit upon the tenant, in the following terms:

"We hereby give you notice to vacate and quit the premises known as 120 Seaton Place, N. W., within thirty days from the date of the expiration of your present month's tenancy, as we, the owners, desire to occupy the property for our own personal use."

On the 1st day of the following month the tenant sent a check to the new owners for the sum of $28.50, as a payment in advance for the rent of that month. The check was refused by the owners, because they had been informed that if they accepted the rent they could not get possession of the premises for their own use. It may be noted that the Saulsbury resolution of May 31, 1918

Action by James E. Lee and another against Henry S. Selden. Judgment for plaintiffs, and defendant appeals. Affirmed. S. H. Giesy, of Washington, D. C., for appellant.

J. A. O'Shea and J. I. Sacks, both of Washington, D. C., for appellees.

Before MARTIN, Chief Justice, ROBB, Associate Justice, and HATFIELD, Judge of the United States Court of Customs Appeals.

MARTIN, Chief Justice. This case was begun on December 23, 1919, in the municipal court, by the appellees as plaintiffs, to recover the sum of $64.60 and interest from the appellant, as rent due for certain premises situate within the District. A trial was had, and judgment was awarded to the plaintiffs, whereupon an appeal was taken to the Supreme Court of the District, under the practice then in force. The plaintiffs again recovered judgment upon their claim, and the case was appealed to this court.

the District. The owners declined to extend the term of the tenant for any period whatsoever, or enter into any contract with him relating to the possession of the premises, and on November 5th, following, they com

menced a landlord and tenant case in the

municipal court against him. This, however, did not come to trial, for on December 8th he vacated the premises, after having occupied them from October 1st to December 8th, without the payment of any rent. The present case was then begun by the owners to recover rent for the period aforesaid at the rate which the tenant had been paying under his lease with the former owner.

Upon the facts just stated the Supreme Court of the District directed the jury to return a verdict in favor of the plaintiffs for the amount of their claim; and the record of the case in that court is now before

us.

The appellant relies at present upon two contentions: First, he denies the right of the appellees to recover upon their claim as sued upon in this case, alleging that they had brought the case to recover ex contractu for the use and occupation of the premises;

whereas, in fact, no contract existed between the parties, and therefore the suit should have been brought ex delicto in trespass for mesne profits. The appellant next contends that the lower court erred in directing a verdict for the plaintiffs for the sum claimed by them, upon the ground that in any event the jury should have been left free to determine the amount of the recovery from the evidence in the case.

[1, 2] We cannot agree with either of these contentions. In answer to the first one, we may say that, when the new owners purchased the property, they acquired the same right of action for rent, or for use and occupation, against the lessee, if holding over his term, which the original owner had. D. C. Code, § 1234; 24 Cyc. pp. 890, 926, 1172; 39 Cyc. p. 860; 2 Taylor, Landlord and Tenant, § 439 et seq. This right was in no wise impaired by the fact that the new owners refused to accept the tendered check for rent, or to enter into a new contract with the tenant to extend his term. They were entitled, therefore, to sue for the use and occupation of the premises, by virtue of the contract rights and relations thus acquired by them from the former owner; and furthermore the municipal court was invested with jurisdiction to entertain the case, whether it sounded in tort or contract. Hence the first of appellant's contentions relates to form only, and, if any informality occurred, it was without prejudice to the appellant.

[3] Upon the second point raised by the appellant, we may say that it was not error for the lower court to direct the jury to return a verdict for the plaintiffs for the amount of their claim, since the finding thus directed is sustained by the undisputed evidence in the case.

The judgment of the lower court is affirmed, at the costs of the appellant.

CHAPMAN et al. v. ANDERSON. (Court of Appeals of District of Columbia. Submitted December 3, 1924. Decided January 5, 1925.)

No. 4108.

1. Malicious prosecution 56-Matters to be proved stated.

In action for malicious prosecution, plaintiff must prove that he was prosecuted, that defendant was the prosecutor or instigated its commencement, that it finally terminated in his acquittal, that charge preferred against him was unfounded, that it was made without reasonable or probable cause, that defendant was

actuated by malice, and that damages conforming to legal standards resulted to plaintiff. 2. Malicious prosecution 16-Either probable cause or want of malice defense.

In action for malicious prosecution, defendants can defeat recovery by showing that they

had probable cause, or that they acted bona fide, without malice, and need not show both conditions.

3. Malicious prosecution 32-Malice presumed from lack of probable cause.

Malice may be presumed from lack of probable cause, if not inconsistent with other facts. 4. Malicious prosecution 23-Lack of probable cause not inferred from malice. Lack of probable cause cannot be inferred from presence of malice.

5. Malicious prosecution question for jury.

71(3)—Malice

Question of malice is one of fact for jury. 6. Malicious prosecution 71 (2) -Probable cause question of law, if facts are undisputed. Question of probable cause is a question of law for the court, if the facts are undisputed; but, if existence of facts from which probable cause or want thereof is to be determined is in dispute, the question is one for the jury, under instructions stating such facts embraced within record as would constitute probable cause. 7. Malicious prosecution 22-Advice of prosecuting attorney held probable cause.

Defendant, who told prosecuting attorney all material facts showing plaintiff guilty of larceny, and who was told by prosecuting attorney that plaintiff was guilty of larceny, and who received slip authorizing warrant clerk to issue warrant, had probable cause for prosecu

tion as a matter of law.

8. Malicious prosecution 71 (2)-Refusal to instruct facts proved constituted probable cause held error.

In action for malicious prosecution for larceny, refusal to instruct jury that certain facts, able cause as a matter of law, held error. if proved, would constitute larceny, and prob

Appeal from the Supreme Court of the District of Columbia.

Action by Edna F. Anderson against J. Edward Chapman and another. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

J. B. Carter and G. V. Triplett, Jr., both of Washington, D. C., for appellants.

H. H. Benjamin and T. M. Baker, both of Washington, D. C., for appellee.

Before MARTIN, Chief Justice, VAN ORSDEL, Associate Justice, and BLAND, Judge of the United States Court of Customs Appeals.

BLAND, Acting Associate Justice. This is an appeal from the judgment of the Su

preme Court of the District of Columbia in favor of plaintiff (appellee) in the sum of $2,500 damages on account of malicious prosecution. Defendant Chapman is a retail coal dealer in Washington, D. C. Defendant Collis is an employee of Chapman. On November 25, 1922, plaintiff's husband, W. T. Anderson, in defendant's office, asked to purchase a ton of hard coal for use in a latrobe. Defendant informed him that he was unable to supply him with hard coal, and he purchased a half ton of coke, for which he paid $8.50 cash. The coke was delivered, and two days later Anderson returned to defendant's office and advised the clerk that he had had difficulty in burning the coke, and again sought to purchase hard coal. While it is a matter of dispute as to just what conversation took place at this time, it is contended by defendants that he asked for the hard coal to mix with the coke. The clerk informed him that he had no hard coal, and Anderson stated that he had sick children in the house and was very much in need of the fuel. Collis came in, and upon hearing the conversation advised Anderson that he would scrape the bins and send him a ton of hard coal, even though some one else had to wait. Nothing was said by Anderson about taking back the coke. He stated that he thought probably, if he made a lot of noise about the coke, they would not let him have the coal, that he knew the coal was to be sent to him C. O. D., and that the price was $15.

On November 27th the ton of hard coal was delivered at Anderson's home on a C. O. D. ticket calling for the payment of $15. Anderson left with his wife the sum of $7, which amount he told her to pay to the driver, and further told her to tell the driver to take the coke back. The driver arrived with the ton of coal, and there is some little conflict in the testimony as to what happened, but the witnesses are substantially in agreement. He was told by Mrs. Anderson to dump the coal in the garage. He did so, and the plaintiff locked the doors of the garage. She offered him $7, and told him he could take back the coke for the remaining $8. The driver explained that he could not do that; that he had to take the $15 or the coal. Plaintiff would not give him the coal or the $15, and said she was instructed so to do by her husband. The driver states that, before he unloaded the coal, plaintiff had some money in her hand, but that she did not tender it to him until after the garage doors had been locked. This the plaintiff did not deny. The driver states that he 3 F. (2d)-22

knew nothing about the coke transaction. It was a rule at the coal office that, if a driver failed to get the money, it was charged to him. After calling the clerk in the office, the driver returned to the coal yard with the $7. Defendant Collis testified that he asked Keyes why he did not get the money before he unloaded the coal, and Keyes replied that the garage was narrow and he had seen the money, and Mrs. Anderson told him to pull outside and she would pay him.

The driver and defendant Collis on the same evening visited plaintiff's home in an attempt to collect the $8. Being unsuccessful, Collis probably threatened her with the law. He told her it was a poor way of getting coal, and that she could not buy any more coal from Chapman or any one else, unless she paid the balance on the order. The evidence indicates that the feelings between the parties were anything but friendly.

The two defendants consulted at their office, and it was agreed that Mr. Collis should · take the matter up with Mr. Given, the Assistant United States District Attorney. Collis states that he related to Given the facts that had been related to him by the driver of the coal wagon. The record narrative of the testimony of Collis on this subject is as follows:

Two or three days after that, witness went down and saw Mr. Given and explained the case to him. Told Mr. Given about the colored man delivering the ton of coal to Mrs. Anderson; that she had told him to pull outside, and had then locked the door. He explained about the coke; that Anderson had gotten a half ton of coke before that, and did not make any complaint about it at the office, but took out for the price of it at the time the ton of coal was delivered, giving the balance of $7 to the driver. Mr. Given asked him how much the balance due on the coal amounted to, and he said $8, which was the price for a half ton of coke. He told Mr. Given the Andersons had offered to send the coke back, but that he considered that a closed matter. Mr. Given said the coke had nothing to do with the coal. Asked how much the coal cost and witness told him it was $15 and was sent out C. O. D. Mr. Given gave him a card and told him to take it down to the warrant clerk and the warrant clerk would give him a warrant. Thinks Mr. Given wrote larceny on the card. Witness went down to the warrant clerk and explained to him what Mr. Given had told him. Told the warrant clerk the same thing he had told Mr. Given.

The warrant clerk wrote out the warrant and also the affidavit, after the witness had stated to him the same facts that he had stated to Mr. Given. It was the only thing witness knew to tell him. Never did tell Chapman he was going to swear out the warrant, and Chapman did not know he had sworn it out until the case in police court had been called; then witness told him all about it. Witness had never seen Mrs. Anderson before that. He did not bear any malice toward her, as he did not even know her. In swearing out the warrant he acted solely on the advice of Mr. Given. If Mr. Given had not told him to get out the warrant, the matter would have been closed. Witness heard Mrs. Anderson testify in this trial, and the facts which witness told Mr. Given were the same that Mrs. Anderson related on the witness stand, as to what happened. Witness identified his signature to the affidavit on which the warrant for Mrs. Anderson was issued. Also identified Mr. Gott as the warrant clerk. Said he stated to Mr. Gott the same facts he stated to Mr. Given. Did not read over the affidavit after Mr. Gott had prepared it."

colored man had made a demand for the return of the coal, and was informed that he had. Told Collis if it was a C. O. D. order, and Mrs. Anderson had accepted the coal and had refused to allow it to be taken back, and had refused to pay for it, that he might have a warrant for larceny. Gave them a slip to the warrant clerk calling for a warrant for larceny. Witness usually determined the grade of the offense and the character of an offense for which a warrant would be issued. The warrant in this case was made out for the larceny of money of the value of $8, and the information was for the larceny of coal of the value of $8. Witness states that it should have been for the larceny of coal. Witness explained the mistake by the fact that he put on the slip simply the word 'larceny' instead of designating larceny of coal,' thinking the clerk would catch it up, as he always made inquiry. Witness stated that the information is the guiding paper, and that the issuance of the warrant for the larceny of money was a mere error; that the information would carry the charge as they thought fit and proper to file it. Witness stated to Col

"That he was Assistant United States Attorney, and had been for 17 years; that he had been in that line of work for 30 years; that he was Assistant United States Attorney in November, 1922. Witness remembered seeing defendant Collis; did not recall exact date, but remembered defendant Collis coming to his office. It was some time in the latter part of 1922. He was not certain whether Collis came alone, or whether there was a colored man with him. Was under the impression that he talked to the colored man too, but he might be mistaken. Knows that Mr. Collis talked to him, and said something about the controversy over a C. O. D. order for some coal. Can't recall very clearly what he said, but he knows that Mr. Collis talked to him about the coal transaction; said there had been a C. O. D. order sent to a house, meaning the home presumably of Mr. Anderson; that the colored man had been sent with the C. O. D. order, and had delivered the coal, but when he went to collect the bill he was refused the money. Told witness that some money had been paid, but that the purchaser had some claim of some kind that they had made and held out some of the money. Asked Collis if the colored man was responsible for the C. O. D. ticket if he lost the money, and was informed that he was. Then asked if the

order, and demand had been made, and Mrs. Anderson deliberately kept the coal, and the colored man was responsible, he believed that Mrs. Anderson had been guilty of larceny.

"On cross-examination, witness stated that he was not absolutely certain that that was all that was told him, as there might have been some little things that he did not remember; that he did remember there was a colored man who was the driver, and that he understood the driver was responsible, and under these circumstances, he was entitled to his warrant. He knew the driver was connected with the matter in some way, but was not sure whether the driver came to his office. Witness was told that the $8 had been charged to the driver. Stated that if it had come to a question between the dealer and the purchaser, he might have hesitated a bit. Witness was unable to identify the driver, Keyes, in court. Witness stated that he did not have in his possession the slip he had sent to the warrant clerk, as they were not always kept permanently; they were kept for a while, but sometimes destroyed or lost. The warrant was issued on the affidavit and not on the slip. The clerk fills out the affidavit. He left it with the clerk whether or not to make the warrant for larceny of money or of coal. Presumed Collis went down to the warrant clerk to