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Immigration Act of February 5, 1917 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, 42894jj), to wit, the Passport Law (Act May 22, 1918 [Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ 7628e7628h]), and the President's proclamation thereunder, in that she presented a passport issued for the use of and in the name of another person." It is to test the validity of the warrant of deportation that this habeas corpus proceeding is brought.

LEE TUCK GAN et al. v. JOHNSON,
Com'r of Immigration.

(Circuit Court of Appeals, First Circuit. February 3, 1925.)

No. 1780.

Aliens 32(12)-Finding that the alleged father of Chinese immigrants was not a citizen of the United States held not subject to reversal.

A finding of the District Court, on a full hearing and on testimony given in open court, that the alleged father of Chinese applicants for entry was not born in the United States, held not subject to reversal on the record.

Appeal from the District Court of the United States for the District of Massachusetts; James Arnold Lowell, Judge.

In the District Court it was found and ruled that there was ample evidence before the district director of immigration to warrant the three findings which he made in his report; that "the fact that the warrant for arrest issued for one or more causes of deportation and the warrant for deportation for another [was] not sufficient cause for dismissing the writ"; and that as the alien, as found by the district director, had entered the country without a passport duly visaed, and as under the Act of May 22, writ, petitioners appeal. Decree amended

1918, continued in force by the Act of March 2, 1921, c. 113, s. 1 (41 Stat. 1217; Comp. St. Ann. Supp. 1923, § 7628hh), her entry without a passport duly visaed was unlawful, her deportation was authorized; that the findings of fact by the director of immigration were "sufficient to justify in law the action taken, or proposed to be taken, and this court cannot further interfere.' In other words, it was held that, as the Secretary of Labor would be warranted in ordering the alien deported on the finding of the district director that she entered the country without a passport duly visaed, the District Court could not interfere, because the Secretary of Labor had in fact ordered her deported upon a ground upon which she was not charged in the warrant of arrest, and which was not added as a charge and tried at the hearing before the district director.

We think this was error. If she is to be deported for "knowingly" using a passport "to enter, not issued or designed for her use" (Act May 22, 1918; 40 Stat. c. 81, 8 le [Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 7628e]), it can be done only upon a finding to that effect by the district director after hearing before him upon such a charge.

The decree of the District Court is reversed, and the case is remanded to that court, with directions to discharge the petitioner.

Petition of Lee Tuck Gan and Lee Tuck

Hen for writ of habeas corpus directed to John P. Johnson, Commissioner of Immigration. From a decree discharging the

and affirmed.

Wilmot R. Evans, Jr., of Boston, Mass. (Edwin C. Jenney, of Boston, Mass., on the brief), for appellants.

Robert O. Harris, U. S. Atty., and John W. Schenck, Asst. U. S. Atty., both of Boston, Mass., for appellee.

Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.

ANDERSON, Circuit Judge. Lee Tuck Gan and Lee Tuck Hen applied for admission as the foreign-born sons of a citizen, Lee Jew. Denied admission, they applied for a habeas corpus. This was issued, apparently on the ground that they had been deprived of a fair hearing. After a full trial in the District Court, the writ was discharged, and the petitioners remanded to the custody of the Commissioner of Immigration. (There was a clerical error, in that the order was that the petition should be there be doubt of the court's jurisdiction to dismissed, and the writ denied.) Even if there be doubt of the court's jurisdiction to retry the case on its merits, that question is not raised before us, and we need not. consider it. The petitioners have now certainly had due process of law.

The applicants assign various alleged errors in the trial before the court; but most of those argued are merely minor matters of evidence, and none of them call for detailed consideration.

The gist of the case was that the applicants contended that they were sons of Lee

8 F.(2d) 805

ESS RUM COAL CO. (Circuit Court of Appeals, Fourth Circuit. January 13, 1925.)

No. 2264.

Appeal and error 80(4)-Final decree essential before appeal lies.

Jew, and that Lee Jew was born in San STEEL & TUBE CO. OF AMERICA v. DINGFrancisco, November 7, 1873, lived there until about seven years of age, and then went to China. If this story was untrue, the petitioners had no case. In support of their contention the petitioners offered a record of proceedings before United States. Commissioner Johnson at Burlington, Vt., on May 28, 1899, which tended to show that a certain Lee Jew was arrested for being unlawfully within the United States and after hearing discharged. It was contended below, and is contended here, that this record was res judicata, as to Lee Jew's citizenship.

But the District Court said: "There is here
a question of identity.
I.am not
ruling that perhaps some Lee Jew is not
a proper citizen. I am ruling that this man
now coming before me under the name of
Lee Jew was not, as far as I can find, born
in the United States. Whether there are
ten other Lee Jews who were does not in-
terest me." Again, in replying to the argu-
ment of counsel that the witness testified
that he was Lee Jew, and the same man ad-
mitted in Vermont as Lee Jew in 1899, the
court said:
I do not believe him.
It is unfortunate, but I don't. I do not be
lieve Lee Jew in the first place, nor these
people who testified to-day."

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Where, after determining the liability of a defendant, there is reference to a special master to ascertain the amount, the case is not appealable until his report is made and final decree entered.

United States for the Southern District of
Appeal from the District Court of the
West Virginia, at Huntington; George W.
McClintic, Judge.

Suit in equity by the Dingess Rum Coal Company against the Steel & Tube Company of America. Decree for plaintiff, and defendant appeals. Appeal dismissed.

J. Gilbert Hardgrove, of Milwaukee, Wis. (Arthur W. Fairchild, of Milwaukee, Wis., and Harold A. Ritz, of Charleston, W. Va., on the brief), for appellant.

Douglas W. Brown, of Huntington, W. Va. (Rolla D. Campbell, Campbell & Campbell, and Fitzpatrick, Brown & Davis, all of Huntington, W. Va., on the brief), for appellee.

Before WOODS, WADDILL, and ROSE, Circuit Judges.

The learned District Judge wrote no formal opinion; but, gathering the substance of his findings and rulings from the meager and confused record before us, it is clear WOODS, Circuit Judge. The main issue that he granted to the petitioners a full trial in the District Court was whether the dein the court, on the theory that they had not fendant was liable on its contract with the had a fair hearing before the immigration plaintiff for 10 per cent. royalty on coal authorities; that he found as a fact, with used and not sold. This issue was decided witnesses, photographs and other evidence in favor of the plaintiff. The decree fixed before him, that the Lee Jew before him, the number of tons upon which the royalty who claimed to be the father of the applicants, was not born in San Francisco, or anywhere else in the United States; and that there was, therefore, no evidence that the alleged father of the applicants was an American citizen. Only an extraordinary record would warrant an appellate court in reversing such a finding by the court that saw the witnesses. The record convinces us that the District Court was plainly right in his finding that the case before him was fraudulent, and that the Lee Jew (if such was his name) before him was an impostor.

The result is that the judgment below must be affirmed, but in proper form; i. e., writ discharged, and petitioners remanded to the custody of the Commissioner of Immigration.

The decree of the District Court, amended as suggested in this opinion, is affirmed.

was due and the liability of the defendant for 10 per cent. of the market value thereon over $1 a ton. As a necessary preliminary to a final judgment, the decree directed a special master to ascertain the market value of the coal, and, upon the basis of that value, report the amount due by the defendant. There has been no report, and no final decree thereon. This court is therefore without jurisdiction, and the appeal must be dismissed. Roswell Beebe et al., v. William Russell, 19 How. 283, 285, 15 L. Ed. 668; Keystone Manganese Co. v. Martin, 132 U. S. 91, 10 S. Ct 32, 33 L. Ed. 275; Lodge v. Twell, 135 U. S. 232, 10 S. Ct. 745, 34 L. Ed. 153; McGourkey v. Toledo & Ohio Central R. Co., 146 U. S. 536, 13 S. Ct. 170, 36 L. Ed. 1079; Covington v. Covington First National Bank, 185 U. S. 270, 22 S. Ct. 645, 46 L. Ed.

906; Rexford v. Brunswick-Balke Co., 228
U. S. 340, 33 S. Ct. 515, 57 L. Ed. 864;
Halfpenny v. Miller, 232 F. 113, 146 C. C.
A. 305 (fourth circuit)
Appeal dismissed.

THE SCHOONER SANTINO.

FORSYTH v. O'BRIEN et al. (Circuit Court of Appeals, First Circuit. February 3, 1925.)

No. 1725.

Brokers 106-Contract made with brokers held not authorized by owner.

Evidence held to support finding of trial court that contract for towage of respondent's schooner, made with brokers, was without respondent's authority.

Appeal from the District Court of the United States for the District of Massachusetts; Elisha H. Brewster, Judge.

Suit in admiralty by George I. Forsyth against Timothy F. O'Brien and another, owners of the schooner Santino. Decree for respondents, and libelant appeals. Affirmed.

George L. Dillaway, of Boston, Mass. (Carl D. Isaacs, of New York City, on the brief), for appellant.

Solomon Rosenberg, of New Bedford, Mass. (Timothy F. O'Brien, of New Bedford, Mass., on the brief), for appellees.

Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.

ANDERSON, Circuit Judge. This admiralty appeal involves a claim for $800 for towing the schooner Santino from New York to New Bedford. The case turns on a question of agency. Of course the burden is upon the appellant to show a contract. The record contains much that is immaterial, and fails to disclose facts easily ascertainable and of importance. It contains the evidence of three witnesses who testified before the court, and of five testifying on deposition. The court below is obviously in a better position than is this court to judge of the weight of the evidence of the witnesses testifying before him.

The claimants (appellees), O'Brien and Bentley, of New Bedford, bought the Santino in New York, in September, 1921, through the Globe Line, Inc., ship brokers, of which Avrutis was president, and Gilbert port captain. The business was done

through Gilbert. The purchasers had no office in New York. Gilbert by deposition testified that after the purchase, O'Brien, at the office of the Globe, Inc., on September 7th to 10th, had Gilbert call up several towing concerns to arrange for towing the schooner to New Bedford, and that this resulted in an agreement with one Hughes to tow the schooner over for $450. But Meader, who testified before the court, said that he made the contract with Hughes, with O'Brien and Gilbert present, and then lowered the schooner's mast, so she might go under the bridges, and thus through Hell Gate, the shorter route. Hughes did not tow her, because, as Hughes later told Gilbert, she was not ready on time, so that his towboat went off on another job. Gilbert, who was going away, left word with Avrutis to arrange to have her towed when ready. Avrutis, acting through one Ludwig of another line, after some negotiation, arranged with Forsyth, the libelant, to tow her for $800. Forsyth confirmed this arrangement with Avrutis by telephone, and also by letter dated September 20, 1921, 10 days after the arrangement with Hughes.

Meantime the mast of the schooner had been struck. To lower and reset the mast In fact, the cost from $200 to $300. schooner was towed by way of the south side of Long Island, because (at least, as O'Brien was informed) a sunken vessel made the Hell Gate route impracticable.

The appellant presented his bill for $800 to O'Brien, who objected "that the bill was too large; that the top masts had been struck." He "offered to pay $450, the amount of the Hughes contract." He testified that Meader made the contract with Hughes for towage, and that he never authorized either Ludwig or Avrutis to employ the libelant. His offer was refused and this libel filed.

The court below found that the libelant had "entirely failed to show that the contract was made with the owners of the schooner or with any one authorized to act for them"; that the Globe Line, Inc., acted "without any authority, express or implied." We cannot say this conclusion was wrong. We find no evidence that the libelees were notified, until after the towing was done, that the arrangement with Hughes was off, or that, either by direct authorization or under any custom, the brokers were empowered to employ a substitute for Hughes, particularly at a higher price.

The decree of the District Court is affirmed, with costs.

8 F.(2d) 807

In re BRITTINGHAM MFG. CO. RUSS MFG. CO. V. BARSKY et al. (Circuit Court of Appeals, Third Circuit. February 7, 1925.)

No. 3227.

Landlord and tenant 264-Statute by which third party's goods on leased premises are made subject to distraint held not repealed by Conditional Sales Act.

Rev. Code Del. 1852, amended to 1893, p. 869, c. 120, § 22, by which goods of a third party found on leased premises are made subject to distraint for rent, was not repealed by implication as to goods held under a contract of conditional sale by the Delaware Uniform Conditional Sales Act.

Petition to Revise from the District Court of the United States for the District of Delaware; Hugh M. Morris, Judge.

In the matter of the Brittingham Manufacturing Company, bankrupt. Petition by the Russ Manufacturing Company to revise an order of the District Court. Affirmed.

For opinion below, see 1 F.(2d) 489. Robert H. Richards and Aaron Finger, both of Wilmington, Del., for petitioner. E. Ennalls Berl, of Wilmington, Del., for respondents.

Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.

BUFFINGTON, Circuit Judge. This case concerns a soda water fountain sold to the bankrupt on conditional sale and placed on leased premises. Thereafter the landlord distrained for rent and seized the fountain, but before he could sell the tenant was thrown into bankruptcy. Whereupon the owner of the fountain petitioned the court to release its property on the ground that by the laws of Delaware the goods of a stranger placed on leased premises by conditional sale were not subject to distraint for rent. The referee and court below held that such was not the law of that state, and dismissed the petition. Whereupon this appeal was taken. We hold no error was committed in the court's so deciding.

Subject to certain exceptions not here pertinent, a statute of Delaware, see Rev. Code 1852 amended to 1893, p. 869, c. 120, § 22, made the goods of a third party found on leased premises subject to rent distraint.

Robelen v. National Bank, 1 Marv. (Del.) 346, 41 A. 80. For generations this has been the policy, usage, and recognized law of that state in renting. Indeed it was brought into the Province in Colonial times. It is now contended that this law of universal use and long continuance was changed by the Legislature, not by a statute which expressly repealed, but by implication when the Legislature passed the Uniform Conditional Sales Act (chapter 192, vol. 30, Laws of Delaware); and we are pointed to the conditional sales sections printed in the margin 1 as having that effect.

We cannot accept this view. Repeals by implication are not favored, and we are not persuaded that the Legislature of the state, in passing this law as to conditional sales, had in view a radical and important change in its rent law. In that regard we agree with the court below when it said:

"The issue presented by the petitions is narrowed to whether or not section 4 of the act is expressly or by necessary implication in conflict with the pre-existing law with respect to property that is subject to distress for rent. I think it deals with an wholly unrelated matter. It provides, merely, that in a conditional sale contract the provisions reserving title in the seller shall be valid. It does not confer upon the seller rights greater than those to be enjoyed by any other holder of an unquestioned absolute title to goods. The landlord, however, is not concerned with title, and, in my opinion, his lien and rights against the soda fountain and cash register are not different because the title of the petitioners is evidenced by a conditional sale contract from what his lien and rights would have been had the title of the petitioners been otherwise evidenced."

The judgment below is affirmed.

1 "Section 4. Every provision in a conditional sale reserving property in the seller after possession of the goods is delivered to the buyer, shall be valid as to all persons, except as hereinafter otherwise provided."

"Section 30. This act shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact it."

"Section 32. Except so far as they are ap

plicable to conditional sales made prior to the

time when this act takes effect, all acts or

parts of acts inconsistent herewith are hereby repealed."

808

3 FEDERAL REPORTER, 2d SERIES

AHEARN et al. v. UNITED STATES.* (Circuit Court of Appeals, Ninth Circuit. February 2, 1925. Rehearing Denied March 9, 1925.)

No. 4328.

1. Intoxicating liquors 236(11)-Evidence held sufficient to prove sale, notwithstanding failure to prove payment of purchase price. In prosecution for sale of liquor in violation of National Prohibition Act (Comp. St. Ann. Supp. 1923, § 101384 et seq.), evidence that the parties had fully agreed on all the terms of the sale, the quantity of liquor to be sold, the purchase price, and the time and place of delivery, and that the liquor was in fact delivered, and that nothing remained to be done but the payment of the purchase price, held sufficient to sustain conviction.

2. Criminal law 510-Corroboration of testimony of co-conspirators not necessary.

Even though prohibition officers to whom defendants sold liquor were co-conspirators, corroboration of their testimony was not necessary to warrant conviction.

In Error to the District Court of the United States for the Southern Division of the Northern District of California; Benjamin F. Bledsoe, Judge.

D. J. Ahearn and W. J. Ahearn were convicted of violating the National Prohibition Act, and they bring error. Affirmed.

B. V. Sargent and James F. Brennan, both of San Francisco, Cal., for plaintiffs in error.

evidence was insufficient to prove the sale charged in the second count, or to connect the plaintiff in error W. J. Ahearn with either the sales or the transportation.

[1] These contentions are without substantial merit. As to the whisky mentioned in the second count, it clearly appears from the testimony that the parties had fully agreed upon all the terms of sale, the quantity to be sold, the purchase price, the time and place of delivery, and that delivery was in fact made. Nothing remained to be done but the payment of the purchase price, and for this an action would lie. Hammer v. United States, 249 F. 336, 161 C. C. A. 344; Reyff v. United States (C. C. A.) 2 F.(2d) 39, decided November 3, 1924.

[2] The testimony was also ample to show that the plaintiff in error W. J. Ahearn aided and abetted in the commission of the crimes charged. There seems to be a further contention that the prohibition officers to whom the sale was made were coconspirators, and it is claimed that their uncorroborated testimony will not support a conviction. If we were to concede that they were co-conspirators, as claimed, which we do not, the conclusion would not follow. Caminetti v. United States, 242 U. S. 470, 495, 37 S. Ct. 192, 61 L. Ed. 442. The judgment is affirmed.

affid 13401) 354.

Sterling Carr, U. S. Atty., and T. J. Sheridan, Asst. U. S. Atty., both of San Fran- THE AUGUSTA G. HILTON. THE GEORGE cisco, Cal.

Before GILBERT, HUNT, and RUDKIN, Circuit Judges.

RUDKIN, Circuit Judge. This is a writ of error to review a judgment of conviction under the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 101384 et seq.). The information names two defendants and contains three counts. The first count charges the sale of one gallon of whisky; the second count, the sale of 15 gallons of whisky; and the third count, the transportation of 15 gallons of whisky-all on the 8th day of November, 1922.

The plaintiff in error D. J. Ahearn entered a plea of guilty as to counts 1 and 3, and not guilty as to count 2. The plaintiff in error W. J. Ahearn entered a plea of not guilty as to all three counts. Upon the trial both defendants were found guilty as charged. The brief on the part of the plaintiffs in error contains no assignment of errors, but their contention seems to be that the *Certiorari denied 45 S. Ct. 511, 69 L. Ed. -.

WASHINGTON. ATLANTIC COAST CO. v. UNITED STATES.

(District Court, Dist. New Jersey. January 29, 1925.)

1. Collision 79-Evidence held to prove owner of schooner at fault because of failure to maintain stern light, while being overtaken by respondent's steamship.

In libel by owner of schooner for damages sustained in collision between schooner and libelant at fault because of failure to maintain respondent's steamship, evidence held to prove stern light while being overtaken by steamship, as required by International Rules of Navigation, arts. 1, 10, 29 (Comp. St. §§ 7837, 7848, 7868).

2. Collision 75-Rule of International Rules of Navigation requiring stern light on vessel being overtaken by another is mandatory.

(Comp. St. § 7848), providing that a vessel International Rules of Navigation, art. 10 which is being overtaken shall show a stern light, is mandatory, and requires display of such light, where officers of vessel have knowlovertaken, regardless of whether such officers edge of position of vessel by which it is being think or are convinced that they are being overtaken.

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