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Immigration Act of February 5, 1917 LEE TUCK GAN et al. v, JOHNSON, (Comp. St. 1918, Comp. St. Ann. Supp.

Com'r of Immigration. 1919, § 428944jj), to wit, the Passport

(Circuit Court of Appeals, First Circuit. Law (Act May 22, 1918 [Comp. St. 1918,

February 3, 1925.) Comp. St. Ann. Supp. 1919, $$ 7628e

No. 1780. 7628h]), and the President's proclamation thereunder, in that she presented a passport Aliens en 32(12)—Finding that the alleged ta. issued for the use of and in the name of an ther of Chinese immigrants was not a citizen other person.” It is to test the validity of of the United States held not subject to re

versal. the warrant of deportation that this habeas

A finding of the District Court, on a full corpus proceeding is brought.

hearing and on testimony given in open court, In the District Court it was found and that the alleged father of Chinese applicants ruled that there was ample evidence before for entry was not born in the United States,

held not subject to reversal on the record. the district director of immigration to warrant the three findings which he made in his report; that "the fact that the warrant for

Appeal from the District Court of the arrest issued for one or more causes of de- United States for the District of Massachuportation and the warrant for deportation setts; James Arnold Lowell, Judge. for another (was] not sufficient cause for

Petition of Lee Tuck Gan and Lee Tuck dismissing the writ”; and that as the alien, Hen for writ of habeas corpus directed to as found by the district director, had en

John P. Johnson, Commissioner of Immitered the country without a passport duly gration. From a decree discharging the visaed, and as under the Act of May 22, writ, petitioners appeal. Decree amended

and affirmed. 1918, continued in force by the Act of March 2, 1921, c. 113, s. 1 (41 Stat. 1217; Wilmot R. Evans, Jr., of Boston, Mass. Comp. St. Ann. Supp. 1923, § 7628hh), her (Edwin C. Jenney, of Boston, Mass., on entry without a passport duly visaed was

the brief), for appellants. unlawful, her deportation was authorized;

Robert 0. Harris, U. S. Atty., and John that the findings of fact by the director of W. Schenck, Asst. U. S. Atty., both of Bosimmigration were "sufficient to justify in ton, Mass., for appellee. law the action taken, or proposed to be Before BINGHAM, JOHNSON, and ANtaken, and this court cannot further inter- DERSON, Circuit Judges. fere." In other words, it was held that, as the Secretary of Labor would be warranted

ANDERSON, Circuit Judge. Lee Tuck in ordering the alien deported on the find- Gan and Lee Tuck Hen applied for admising of the district director that she entered sion as the foreign-born sons of a citizen, the country without a passport duly visaed, Lee Jew. Denied admission, they applied the District Court could not interfere, be- for a habeas corpus. This was issued, apcause the Secretary of Labor had in fact parently on the ground that they had been ordered her deported upon a ground upon deprived of a fair hearing. After a full which she was not charged in the warrant trial in the District Court, the writ was disof arrest, and which was not added as a charged, and the petitioners remanded to charge and tried at the hearing before the the custody of the Commissioner of Immidistrict director.

gration. (There was a clerical error, in that We think this was error. If she is to be the order was that the petition should be deported for "knowingly” using a passport dismissed, and the writ denied.) Even if “to enter, not issued or designed for her there be doubt of the court's jurisdiction to use” (Act May 22, 1918; 40 Stat. c. 81, 8 retry the case on its merits, that question le [Comp. St. 1918, Comp. St. Ann. consider it. The petitioners have now cer

is not raised before us, and we need not. Supp. 1919, § 7628e]), it can be done only tainly had due process of law. upon a finding to that effect by the district

The applicants assign various alleged director after hearing before him upon such

rors in the trial before the court; but most a charge.

of those argued are merely minor matters The decree of the District Court is re

of evidence, and none of them call for deversed, and the case is remanded to that tailed consideration. court, with directions to discharge the peti- The gist of the case was that the applitioner.

cants contended that they were sons of Lee

er

3 F.(20) 806 Jew, and that Lee Jew was born in San STEEL & TUBE CO. OF AMERICA V. DINGFrancisco, November 7, 1873, lived there un

ESS RUM COAL CO. til about seven years of age, and then went (Circuit Court of Appeals, Fourth Circuit. to China. If this story was untrue, the peti

January 13, 1925.) tioners had no case. In support of their

No. 2264. contention the petitioners offered a record of proceedings before United States. Com- Appeal and error Om80(4)-Final decree es

sential before appeal lies. missioner Johnson at Burlington, Vt., on May 28, 1899, which tended to show that a

Where, after determining the liability of a

defendant, there is reference to a special mascertain Lee Jew was arrested for being un- ter to ascertain the amount, the case is not lawfully within the United States and after appealable until his report is made and final hearing discharged. It was contended be decree entered. low, and is contended here, that this record was res judicata, as to Lee Jew's citizenship. United States for the Southern District of

Appeal from the District Court of the But the District Court said: “There is here a question of identity. .

I am not

West Virginia, at Huntington; George W. ruling that perhaps some Lee Jew is not McClintic, Judge. a proper citizen. I am ruling that this man Suit in equity by the Dingess Rum Coal now coming before me under the name of Company against the Steel & Tube ComLee Jew was not, as far as I can find, born pany of America. Decree for plaintiff, in the United States. Whether there are and defendant appeals. Appeal dismissed. ten other Lee Jews who were does not in

J. Gilbert Hardgrove, of Milwaukee, Wis. terest me.” Again, in replying to the argu- (Arthur W. Fairchild, of Milwaukee, Wis., ment of counsel that the witness testified and Harold A. Ritz, of Charleston, W. Va., that he was Lee Jew, and the same man ad- on the brief), for appellant. mitted in Vermont as Lee Jew in 1899, the Douglas W. Brown, of Huntington, W. court said: I do not believe him. Va. (Rolla D. Campbell, Campbell

& CampIt is unfortunate, but I don't. I do not be- bell, and Fitzpatrick, Brown & Davis, all lieve Lee Jew in the first place, nor these of Huntington, W. Va., on the brief), for people who testified to-day."

appellee. The learned District Judge wrote no formal opinion; but, gathering the substance of

Before WOODS, WADDILL, and ROSE,

Circuit Judges. 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 appli- was due and the liability of the defendant cants, was not born in San Francisco, or for 10 per cent. of the market value thereanywhere else in the United States; and that on over $1 a ton. As a necessary prelimithere was, therefore, no evidence that the al- nary to a final judgment, the decree directleged father of the applicants was an Amer- ed a special master to ascertain the market ican citizen. Only an extraordinary record value of the coal, and, upon the basis of would warrant an appellate court in revers- that value, report the amount due by the ing such a finding by the court that saw the defendant. There has been no report, and witnesses. The record convinces us that the no final decree thereon. This court is thereDistrict Court was plainly right in his find- fore without jurisdiction, and the appeal ing that the case before him was fraudulent, must be dismissed. Roswell Beebe et al., and that the Lee Jew (if such was his name) v. William Russell, 19 How. 283, 285, 15 before him was an impostor.

L. Ed. 668; Keystone Manganese Co. v. The result is that the judgment below Martin, 132 U. S. 91, 10 S. Ct. 32, 33 L. must be affirmed, but in proper form; i. e., Ed. 275; Lodge v. Twell, 135 U. S. 232, 10 writ discharged, and petitioners remanded to S. Ct. 745, 34 L. Ed. 153; McGourkey v. the custody of the Commissioner of Immi- Toledo & Ohio Central R. Co., 146 U. S. gration.

536, 13 S. Ct. 170, 36 L. Ed. 1079; CovThe decree of the District Court, amend- ington v. Covington First National Bank, ed as suggested in this opinion, is affirmed. 185 U. S. 270, 22 S. Ct. 645, 46 L. Ed. 906; Rexford v. Brunswick-Balke Co., 228 through Gilbert. The purchasers had no U. S. 340, 33 S. Ct. 515, 57 L. Ed. 864; office in New York. Gilbert by deposition Halfpenny v. Miller, 232 F. 113, 146 C. C. testified that after the purchase, O'Brien, at A. 305 (fourth circuit)

the office of the Globe, Inc., on September Appeal dismissed.

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 MeadTHE SCHOONER SANTINO,

er, who testified before the court, said that FORSYTH v. O'BRIEN et al.

he made the contract with Hughes, with (Circuit Court of Appeals, First Circuit.

O'Brien and Gilbert present, and then lowFebruary 3, 1925.)

ered the schooner's mast, so she might go

under the bridges, and thus through Hell No. 1725.

Gate, the shorter route. Hughes did not Brokers @ma 106-Contract made with brokers tow her, because, as Hughes later told Gilheld not authorized by owner. Evidence held to support finding of trial towboat went off on another job. Gilbert,

bert, she was not ready on time, so that his court that contract for towage of respondent's schooner, made with brokers, was without re- who was going away, left word with Avruspondent's authority.

tis to arrange to have her towed when

ready. Avrutis, acting through one LudAppeal from the District Court of the wig of another line, after some negotiation, United States for the District of Massachu- arranged with Forsyth, the libelant, to tow setts; Elisha H. Brewster, Judge.

her for $800. Forsyth confirmed this arSuit in admiralty by George I. Forsyth rangement with Avrutis by telephone, and against Timothy F. O'Brien and another, also by letter dated September 20, 1921, 10 owners of the schooner Santino. Decree days after the arrangement with Hughes. for respondents, and libelant appeals. Af- Meantime the mast of the schooner had firmed.

been struck. To lower and reset the mast

In fact, the George L. Dillaway, of Boston, Mass. cost from $200 to $300. (Carl D. Isaacs, of New York City, on the schooner was towed by way of the south brief), for appellant.

side of Long Island, because (at least, as Solomon Rosenberg, of New Bedford, O'Brien was informed) a sunken vessel Mass. (Timothy F. O'Brien, of New Bed- made the Hell Gate route impracticable. ford, Mass., on the brief), for appellees.

The appellant presented his bill for $800

to O'Brien, who objected “that the bill was Before BINGHAM, JOHNSON, and too large; that the top masts had been ANDERSON, Circuit Judges.

struck." He "offered to pay $450, the

amount of the Hughes contract.” He testiANDERSON, Circuit Judge. This ad- fied that Meader made the contract with miralty appeal involves a claim for $800 Hughes for towage, and that he never aufor towing the schooner Santino from New thorized either Ludwig or Avrutis to employ York to New Bedford. The case turns on a the libelant. His offer was refused and this question of agency. Of course the burden libel filed. is upon the appellant to show a contract. The court below found that the libelant The record contains much that is immateri- had "entirely failed to show that the conal, and fails to disclose facts easily ascer- tract was made with the owners of the tainable and of importance. It contains schooner or with any one authorized to act the evidence of three witnesses who testi- for them"; that the Globe Line, Inc., acted fied before the court, and of five testifying "without any authority, express or imon deposition. The court below is obvious- plied.” We cannot say this conclusion was ly in a better position than is this court wrong. We find no evidence that the lito judge of the weight of the evidence of belees were notified, until after the towing the witnesses testifying before him.

was done, that the arrangement with Hughes The claimants (appellees), O'Brien and was off, or that, either by direct authorizaBentley, of New Bedford, bought the San- tion or under any custom, the brokers were tino in New York, in September, 1921, empowered to employ a substitute for through the Globe Line, Inc., ship brokers, Hughes, particularly at a higher price. of which Avrutis was president, and Gil- The decree of the District Court is af. bert port captain. The business was done firmed, with costs.

1

8 F.(20) 807 In re BRITTINGHAM MFG. CO.

Robelen v. National Bank, 1 Marv. (Del.) RUSS MFG. CO. v. BARSKY et al.

346, 41 A. 80. For generations this has

been the policy, usage, and recognized law (Circuit Court of Appeals, Third Circuit. February 7, 1925.)

of that state in renting. Indeed it was

brought into the Province in Colonial times. No. 3227.

It is now contended that this law of univerLandlord and tenant @w264-Statute by which sal use and long continuance was changed by

third party's goods on leased premises are the Legislature, not by a statute which exmade subject to distraint held not repealed pressly repealed, but by implication when by Conditional Sales Act.

the Legislature passed the Uniform CondiRev. Code Del. 1852, amended to 1893, p. 869, c. 120, § 22, by which goods of a third

tional Sales Act (chapter 192, vol. 30, Laws party found on leased premises are made sub- of Delaware); and we are pointed to the ject to distraint for rent, was not repealed by conditional sales sections printed in the implication as to goods held under a contract

margin as having that effect. of conditional sale by the Delaware Uniform

We cannot accept this view. Repeals by Conditional Sales Act.

implication are not favored, and we are not Petition to Revise from the District Court persuaded that the Legislature of the state, of the United States for the District of had in view a radical and important change

in passing this law as to conditional sales, Delaware; Hugh M. Morris, Judge.

in its rent law. In that regard we agree In the matter of the Brittingham Manu- with the court below when it said: facturing Company, bankrupt. Petition by “The issue presented by the petitions is the Russ Manufacturing Company to revise narrowed to whether or not section 4 of the an order of the District Court. Affirmed.

act is expressly or by necessary implication For opinion below, see 1 F.(20) 489. in conflict with the pre-existing law with re

Robert H. Richards and Aaron Finger, spect to property that is subject to distress both of Wilmington, Del., for petitioner. for rent. I think it deals with an wholly

E. Ennalls Berl, of Wilmington, Del., for unrelated matter. It provides, merely, that respondents.

in a conditional sale contract the provisions Before BUFFINGTON, WOOLLEY, and reserving title in the seller shall be valid. It DAVIS, Circuit Judges.

does not confer upon the seller rights greater than those to be enjoyed by any other

holder of an unquestioned absolute title to BUFFINGTON, Circuit Judge. This goods. The landlord, however, is not concase concerns a soda water fountain sold to cerned with title, and, in my opinion, his the bankrupt on conditional sale and placed lien and rights against the soda fountain on leased premises. Thereafter the landlord and cash register are not different because distrained for rent and seized the fountain, the title of the petitioners is evidenced by but before he could sell the tenant was a conditional sale contract from what his thrown into bankruptcy. Whereupon the lien and rights would have been had the owner of the fountain petitioned the court title of the petitioners been otherwise evito release its property on the ground that denced." by the laws of Delaware the goods of a The judgment below is affirmed. stranger placed on leased premises by conditional sale were not subject to distraint tional sale reserving property in the seller

1 "Section 4. Every provision in a condifor rent. The referee and court below held after possession of the goods is delivered to the that such was not the law of that state, and buyer, shall be valid as to all persons, except dismissed the petition. Whereupon this ap

as hereinafter otherwise provided."

“Section 30. This act shall be so interpreted peal was taken. We hold no error was com

and construed as to effectuate its general purmitted in the court's so deciding.

pose to make uniform the law of those states Subject to certain exceptions not here which enact it.” pertinent, a statute of Delaware, see Rev.

"Section 32. Except so far as they are apCode 1852 amended to 1893, p. 869, c. 120, time when this act takes effect, all acts or

plicable to conditional sales made prior to the § 22, made the goods of a third party found parts of acts inconsistent herewith are hereby on leased premises subject to rent distrainto repealed.”

rertelen ab 8 w 49269 L Ed. 1160

115dup Cf. 51

808

3 FEDERAL REPORTER, 20 SERIES

AHEARN et al. v. UNITED STATES.* evidence was insufficient to prove the sale (Circuit Court of Appeals, Ninth Circuit. Feb charged in the second count, or to conneet ruary 2, 1925. Rehearing Denied the plaintiff in error W. J. Ahearn with eiMarch 9, 1925.)

ther the sales or the transportation. No. 4328.

[1] These contentions are without sub

stantial merit. As to the whisky mentioned 1. Intoxicating liquors w236(11)-Evidence in the second count, it clearly appears from held sufficient to prove sale, notwithstanding the testimony that the parties had fully failure to prove payment of purchase price.

In prosecution for sale of liquor in violation agreed upon all the terms of sale, the quanof National Prohibition Act (Comp. St. Ann. tity to be sold, the purchase price, the time Supp. 1923, $ 1013844 et seq.), evidence that and place of delivery, and that delivery was the parties had fully agreed on all the terms of in fact made. Nothing remained to be done the sale, the quantity of liquor to be sold, the but the payment of the purchase price, and purchase price, and the time and place of delivery, and that the liquor was in fact deliv- for this an action would lie. Hammer v. ered, and that nothing remained to be done but United States, 249 F. 336, 161 C. C. A. 344; the payment of the purchase price, held suffi- Reyff v. United States (C. C. A.) 2 F.(24) cient to sustain conviction.

39, decided November 3, 1924. 2, Criminal law 510-Corroboration of tes. [2] The testimony was also ample to timony of co-conspirators not necessary. show that the plaintiff in error W. J.

Even though prohibition officers to whom Ahearn aided and abetted in the commisdefendants sold liquor were co-conspirators, sion of the crimes charged. There seems to corroboration of their testimony was not necessary to warrant conviction.

be a further contention that the prohibition

officers to whom the sale was made were coIn Error to the District Court of the conspirators, and it is claimed that their United States for the Southern Division of uncorroborated testimony will not support a the Northern District of California; Benja- conviction. If we were to concede that they min F. Bledsoe, Judge.

were co-conspirators, as claimed, which we

do not, the conclusion would not follow. D. J. Ahearn and W. J. Ahearn were con

Caminetti v. United States, 242 U. S. 470,
victed of violating the National Prohibition 495, 37 S. Ct. 192, 61 L. Ed. 442.
Act, and they bring error. Affirmed.

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

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

WASHINGTON. ATLANTIC COAST cisco, Cal.

CO. V. UNITED STATES.
Before GILBERT, HUNT, and RUD- (District Court, Dist. New Jersey. January
KIN, Circuit Judges.

29, 1925.)

1. Collision 79-Evidence held to prove RUDKIN, Circuit Judge. This is a writ

owner of schooner at fault because of fail. of error to review a judgment of conviction ure to maintain stern light, while being over. under the National Prohibition Act (Comp. taken by respondent's steamship. St. Ann. Supp. 1923, § 1013844 et seq.). In libel by owner of schooner for damages The information names two defendants and sustained in collision between schooner and contains three counts. The first count charg. libelant at fault because of failure to maintain

respondent's steamship, evidence held to prove es the sale of one gallon of whisky; the sec- stern light while being overtaken by steamship, ond count, the sale of 15 gallons of whisky; as required by International Rules of Navigaand the third count, the transportation of 15 tion, arts. 1, 10, 29 (Comp. St. $$ 7837, 7848,

7868). gallons of whisky-all on the 8th day of November, 1922.

2. Collision Om75–Rule of International Rules The plaintiff in error D. J. Ahearn enter

of Navigation requiring stern light on vessel

being overtaken by another is mandatory. ed a plea of guilty as to counts 1 and 3, and not guilty as to count 2. The plaintiff (Comp. St. $ 7848), providing that a vessel

International Rules of Navigation, art. 10 in error W. J. Ahearn entered a plea of not which is being overtaken shall show & stern guilty as to all three counts. Upon the trial light, is mandatory, and requires display of both defendants were found guilty as charg- such light, where officers of vessel have knowled. The brief on the part of the plaintiffs

. edge of position of vessel by which it is being

overtaken, regardless of whether such officers in error contains no assignment of errors, think or are convinced that they are being overbut their contention seems to be that the taken.

*Certiorari denied 45 S. Ct. 511, 69 L. Ed. .

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