dren under the age of 16 years, they being then and there in destitute and necessitous circumstances. Before the return of the indictment, the appellant fled or departed from the District of Columbia, and was thereafter found in the Southern district of California. Proceedings were there instituted before a United States commissioner, under section 1014 of the Revised Statutes (Comp. St. § 1674), for the removal of the appellant to the District of Columbia for trial. Upon examination, the commissioner found that the offense had been committed as charged, and that there was probable cause to believe the appellant guilty thereof. He was thereupon held to answer for the offense before the Supreme Court of the District of Columbia, and was committed to the custody of the United States marshal, pending removal proceed ings. The case then came before the court below on application for an order of removal, and upon application for a writ of habeas corpus. The two applications were consolidated, and upon final hearing the application for the order of removal was granted, and the application for a writ of habeas corpus denied. From the latter order this appeal is prosecuted. [1, 2] By written stipulation of the parties the deposition of the wife of the appellant was taken in the District of Columbia, to be used upon the hearing in the court below, subject to the like objections as if the witness were personally present in court. The appellant moved to suppress this deposition upon the ground that the wife is not a competent witness against him under the laws of the state of California. Whether the wife is a competent witness against the husband under the laws of the state of California we need not inquire, for two reasons: First, the competency of witnesses in criminal trials in the courts of the United States is governed by the common law, not by the law of the state, except where Congress has made specific provision upon the subject; and, second, because the act in question expressly provides that the wife shall be a competent witness against the husband. If she is a competent witness upon the trial in the District of Columbia, she is manifestly a competent witness to establish probable cause in the state of California. Logan v. United States, 144 U. S. 263, 303, 12 S. Ct. 617, 36 L. Ed. 429; Cohen v. United States, 214 F. 23, 28, 130 C. C. A. 417. strike certain answers contained in the deposition, on various grounds, such as that they are not responsive, are mere conclusions, are based upon hearsay, or are irrelevant, incompetent, or immaterial. Whether these several rulings are technically correct we need not inquire, because it was the duty of the court below to consider the testimony as a whole in determining the question of probable cause, and, if a correct conclusion was reached, the judgment will not be reversed for mere errors in the admission of testimony, or in the refusal to strike testimony already given. [4] It is next contended that the court below was without jurisdiction to remove the appellant to the District of Columbia for trial, because minor offenses in that district, such as that here charged, do not come within the purview of section 1014 of the Revised Statutes. This contention is without merit. As said by the court in United States v. Campbell (D. C.) 179 F. 762: "But if an offense against this statute is not an offense against the United States, how is it to be described? It is certainly not an offense against the District of Columbia, for the District is not a sovereignty, and has no legislative power of its own." The offense in question is defined by an act of Congress, a violation of the act is of necessity an offense against the United States, and such offenses have uniformly been prosecuted as such. [5] Various objections have been interposed to the indictment, both in matters of form and matters of substance. If the indictment were clearly defective, we would not hesitate to discharge the appellant; but no such case is presented here. Without going into the objections in detail, the most that can be said is that they present debatable questions, and it is well settled that all disputed questions of fact and all disputed matters of law, relating either to the sufficiency of the indictment or to the validity of the statute on which the indictment is based, are for the determination of the court in which the indictment was returned. Rowe v. Boyle (C. C. A.) 268 F. 809; Haas v. Henkle, 216 U. S. 462, 30 S. Ct. 249, 54 L. Ed. 569, 17 Ann. Cas. 1112; Henry v. Henkle, 235 U. S. 219, 35 S. Ct. 54, 59 L. Ed. 203; Stallings v. Splain, 253 U. S. 339, 40 S. Ct. 537, 64 L. Ed. 940; Louie v. United States, 254 U. S. 548, 41 S. Ct. 188, 65 L. Ed. 399; Rodman v. Pothier, 264 U. S. 399, 44 S. Ct. 360, 68, [3] The appellant has likewise moved to L. Ed. 759. Under these authorities it is 3 F.(2d) 905 manifest that the objections to the indictment are not well taken. [6] Finally, it is contended that the evidence as a whole does not support a finding that the offense was committed, or that there is probable cause to believe the appellant guilty. While the testimony offered by the government was in some respects unsatisfactory, the court below, after a full review, was satisfied that probable cause existed, and the concurrent finding of the commissioner and the lower court on conflicting testimony will not be disturbed on appeal. The order is therefore affirmed. Geo. Vlassis, in prò. per. George T. Wilson, Asst. U. S. Atty., of Phoenix, Ariz. Before GILBERT, ROSS, and HUNT, Circuit Judges. ROSS, Circuit Judge. The plaintiff in error was defendant to three indictments filed in the court below, the first of which was numbered C-1797, which charged, in effect, that he and two other named persons on the 1st day of January, 1923, continuously from that date to and including January 7th of the same year, within the jurisdiction of the court below, willfully and feloniously conspired together and with other persons to the grand jurors unknown to import cocaine into the United States, and to conceal it therein after such importation, in violation of the Act of Congress of February 9, 1919, as amended by that of May 26, 1922, and the indictment alleged various overt acts of the plaintiff in error in furtherance of the alleged conspiracy. The next indictment, numbered C-1798, alleged in its first count that the plaintiff in error and the other named parties did on the 7th day of January, 1923, within the jurisdiction of the court below, willfully and feloniously deal in cocaine without first having registered with the collector of internal revenue for the district of Arizona, or with any other collector of such revenue, as required by the Act of Congress of December 17, 1914 (Comp. St. § 6287g et seq.), as amended by that of February 24, 1919 (Comp. St. Ann. Supp. 1919, §§ 6287g, 62871), and without first having paid the special tax provided therefor. The second count of that indictment alleged that the plaintiff in error and the other named parties on the same day of January, 1923, and within the jurisdiction of the court below, did willfully and feloniously import and bring into the United States, and assist in so doing, 200 ounces of cocaine. Its third count alleged that the plaintiff in error and the other named parties, on the same day and within the jurisdiction of the court below, did willfully and feloniously receive and conceal and facilitate the transportation and concealment of 200 ounces of cocaine after the importation thereof into the Unitand the other specifically mentioned parties, ed States; they, the said plaintiff in error then and there well knowing the said cocaine to have been imported and brought into this country contrary to law. The indictment numbered C-1802 alleged that the plaintiff in error and the other spe cifically mentioned parties, on the 1st day of December, 1922, continuously from that date to and including January 7th, 1923, within the district of Arizona and elsewhere at places unknown to the grand jurors, willfully and feloniously conspired together, and with other persons to the grand jurors unknown, to import, deal in, dispense, sell, distribute, and give away morphine and cocaine without first registering with the collector of internal revenue for the district of Arizona, or with any other collector of internal revenue of the United States, as provided for in the Act of Congress of December 17, 1914, as amended February 24, 1919, and without first paying the special tax provided for therein. That indictment also alleged various overt acts committed by the defendants thereto in furtherance of the alleged conspiracy. The record contains no bill of exceptions, but shows that the plaintiff in error pleaded not guilty to each of the indictments, and was by the court granted a severance and separate trial from the other two defendants thereto, and on motion of the government's attorneys the three indictments were consolidated for trial, and were tried without objection on the part of the plaintiff in error; he being at all times present with his attorney. Witnesses were subponaed on his behalf at the expense of the government, and he was, according to the record, afforded by the court every opportunity to contest the allegations against him. The jury found him guilty under each of the counts in the indictment numbered C-1798, and also guilty as charged in those numbered, respectively, C-1797 and C-1802. The contention of the plaintiff in error here is that the offenses charged in the different indictments are the same, and susceptible of but one punishment; that the indict ments were improperly consolidated; and also that the imprisonment imposed upon him by the judgment of the trial court was in excess of that authorized by statute. Those, according to the record, are the only matters open to our consideration. [1] The contention that the offenses charged in the different indictments are the same, and susceptible of but one punishment, is well answered by the cases of Morgan v. Devine, 237 U. S. 632, 35 S. Ct. 712, 59 L. Ed. 1153, Gavieres v. United States, 220 U. S. 338, 31 S. Ct. 421, 55 L. Ed. 489, and Carter v. McClaughry, 183 U. S. 367, 22 S. Ct. 181, 46 L. Ed. 236, and other cases there referred to. A mere reading of the indictments shows that, while the transac tions therein respectively alleged are of the same nature, the offenses constitute separate crimes. That is made apparent by the obvious fact that the offenses alleged required different evidence to sustain them. [2, 3] Regarding the contention that the indictments were improperly consolidated, it is sufficient to say that Congress has enacted that, "when there are several charges against any person for the same act or transaction, or for two or more acts or transactions connected together, or for two or more acts or transactions of the same class of crimes or offenses which may be properly joined, instead of having several indictments the whole may be joined in one indictment in separate counts; and if two or more indictments are found in such cases the court may order them to be consolidated," and to point to the decision of the Supreme Court in the case of Logan v. United States, 144 U. S. 263, 296, 297, 12 S. Ct. 617, 36 L. Ed. 429, where that court held that, where defendants go to trial without objection on consolidated indictments, it is not open to them to take the objection for the first time after verdict. [4] In respect to the claim that the imprisonment imposed upon the plaintiff in error was excessive, it is enough to say that it was much less than it was authorized to have imposed for the violation of the statutes which the jury found the plaintiff in error violated. The judgment is affirmed. affid 2719 W 647.70 Ed: 1130, 46 Sup G. 481. MAXWELL et al. v. UNITED STATES. (Circuit Court of Appeals, Fourth Circuit. January 13, 1925.) Revds feed) 101 1. Judges 1018. No. 2268. 7-Retired federal judge still in service and authorized to act without designation. Under Judicial Code, § 260, as amended by Act Feb. 25, 1919 (Comp. St. Ann. Supp. 1919, § 1237), providing that a Circuit or District Judge retiring voluntarily "shall be held and treated as if junior in commission to the remaining judges of said court," a retired District Judge is still in the service and may hold court in his district without designation. 2. United States 73-Contractor for post office building held not relieved from liability for nonperformance by war activities of the government. A contractor who, after the United States had entered the war, contracted to build a post office, to be completed within a stated time, which was made of the essence of the contract, 3 F.(2d) 906. held not relieved from liability thereunder for failure to complete it within the time by the war activities of the government, including conscription of men for the army, the employment of a large number of men at high wages in the building of a large camp near by, and the taking control of transportation, all of which made it difficult or impossible for the contractor to obtain labor and material at prices warranted by his contract. 3. United States 73 Government acts which would not relieve contractor with private party from liability for breach of contract will not relieve government contractor. While it is settled law that the United States as a party to commercial or business contracts is subject to the same rules that govern private parties, and that a party to a contract cannot recover damages for its breach when by his own acts he frustrated performance by the other party, where legislative or administrative measures of general character, taken under authority of law, would not change the rights of one who had contracted to do something for a private individual, they will not be any more effective because the undertaking was with the government. 4. United States 73-Termination of build ing contract by government held justified. The government held justified in terminating a contract for building a post office and in completing the work at the contractor's expense, when nearly a year had elapsed since the time fixed by the contract for completing the building and where, to a notice that the contract would be terminated unless satisfactory arrangement was made within eight days for effectively carrying on the work, neither the contractor nor his surety made any response. In Error to the District Court of the United States for the Eastern District of South Carolina, at Charleston; Henry A. Middleton Smith, Judge. Action at law by the United States against William H. Maxwell and the Globe Indemnity Company. Judgment for plaintiff, and defendants bring error. Affirmed. See, also, 299 Fed. 613. Christie Benet, of Columbia, S. C., and George A. King, of Washington, D. C. (King & King, of Washington, D. C., Benet, Shand & McGowan, of Columbia, S. C., F. A. W. Ireland, of New York City, Frank G. Tompkins, of Columbia, S. C., and Charles F. Harley, of Baltimore, Md., on the briefs), for plaintiffs in error. J. D. E. Meyer, U. S. Atty., and Louis M. Shimel, Asst. U. S. Atty., both of Charleston, S. C. Indemnity Company, hereinafter referred to as the contractor and the surety, respectively, were defendants below. The plaintiff there was the United States, herein styled the government. It sued them on the bond they had given for the performance by the contractor of his undertaking to build the post office at Columbia, S. C. [1] The surety says that the late Judge Smith, before whom the case was tried below, had not been properly designated to hold the District Court of the United States for the Eastern District of South Carolina and what was there done was a nullity. At the time, Judge Smith was a retired District Judge of that district, having the status defined and regulated by section 260 of the Judicial Code as amended by the Act of February 25, 1919, 40 Stat. 1157 (Comp. St. Ann. Supp. 1919, § 1237). The surety's contention is that a special authorization is required before such a judge can discharge any judicial function. If he is to act in the judicial circuit to which he formerly belonged, that authorization must come from its Senior Circuit Judge. what he is to do is to be done outside of that circuit, the authority may be given by either the Chief Justice of the United States or by presiding or senior judge of the court in which he is to sit. It is admitted that the Senior Circuit Judge of this circuit did not designate Judge Smith to hold a District Court in the Eastern District of South Carolina. The short answer to all this is that Judge Smith, under his original commission, was entitled to hold the court of that district and required no designation from any one to do so. was still a District Judge of that district, as the act itself clearly recognizes by directing, "The judge so retiring voluntarily If He shall be held and treated as if junior in commission to the remaining judges of said court." Such is the construction which the act has universally received in practice in this circuit and so far as we know, in all the others. Moreover, it may be said, in passing, it was the one given to it in the congressional debate which preceded its enactment. Mr. Steele, who spoke for the committee which reported it to the House, said: "The merit of this provision is that instead of resigning, the judge simply retires and is still enabled to Before WOODS, WADDILL, and ROSE, perform such judicial service as he is capaCircuit Judges. ROSE, Circuit Judge. The plaintiffs in error, William H. Maxwell and the Globe ble of performing when the business of the district demands it. The district receives the benefit of such service without any additional expense to the government." Con gressional Record, 65th Congress, Third Session, 368. During the course of the debate, Mr. Dyer said: "If this bill becomes a law, it will still permit the other judge, that is the judge who is being given this assistance, but who still remains on the bench, to be a judge in fact, not a supernumerary, and if any one appeared before him for a writ of any kind, he would have full authority to issue that writ. In other words, the new judge would not be the only judge of the court.' Id., 370. Of the dozen errors assigned, some refer to the refusal of the court to direct a verdict for the defendants, others to the direction of a verdict for the plaintiff, and the remainder to the exclusion of testimony which the defendants sought to introduce. The bond sued on was executed and delivered on the 1st of August, 1917, and the contract, the due performance of which it was intended to secure, bore date on the previous day. The contractor bound himself to complete the work within 20 months; that is to say, by the 31st of March, 1919. Time was declared to be of the essence of the undertaking, and the contractor was to pay $10 per day as liquidated damages for each and every day's delay not caused by the government. The Secretary of the Treasury might waive such damages in whole or in part, and the contractor was to be entitled to one day in addition to the stipulated time for each day the work might be suspended by the government and to a similar extension for each day's delay caused by the government provided written claim for such extension was made within 10 days of the occurrence of such delay. There is nothing in the record to show that the contractor ever made any such claim. The contract further provided that if the contractor should fail to prosecute the work with such diligence as in the judgment of the government would insure its completion within the time provided, the government might after eight days' written notice to him, and his failure within that time to take such action as would in the government's judgment remedy the fault for which the notice was given, take possession of the work and of the tools and materials on the site and complete the undertaking at his expense. On the 22d of March, 1920, 11 months and 20 days after the contract time for completion, the government gave the contractor written notice, a copy of which it also caused to be delivered to the surety, that from the reports on file with it his dilatory and unsatisfactory manner of con ducting the work had caused, and was causing, unwarrantable delays, resulting in loss and damage to the United States. The notice warned him that unless within eight days from its service he should satisfy the Department he had taken such steps and made such arrangements as would absolutely insure the full and satisfactory completion of all the work embraced in the contract without any further delay on his part, the Department, acting for the government under the contract, would terminate his right to proceed under it and would take possession of the work, machinery, tools and materials on the site belonging to him and would complete the work at his expense and that of his surety. Neither the contractor nor the surety, did, said, or wrote anything in consequence of the notice, and on the 31st of March the government noti fied both of them that the conditions were very unsatisfactory and that the contractor's right to proceed under the contract was terminated. Each of them received this notice in a silence which upon the part of the contractor was never broken, so far as the record discloses, until after this suit was brought some 16 months later. At first, the surety apparently was quite as reluctant to commit itself to anything. More than 3 months of repeated letters and telegrams from the government representing the urgency of the situation and the need for immediate action elicited nothing more definite from it than the statement that it would look into the matter. It was not until July 17th that it finally notified the gov ernment that it would not complete the contract. The government thereupon invited and received competitive bids from other parties for finishing the building and awarded a contract to do so to one of them. This suit was brought to recover the amount for which the total cost to the government of the post office exceeded the sum for which the contractor had undertaken to erect it. There is no controversy that this excess amounted to $110,323.55, for which the government is entitled to a judgment if it is entitled to recover anything as defendants say it is not. By cross-examination of witnesses offered by the government and by direct testimony of those produced by the defendants, the latter sought to show that the government itself had prevented the contractor from obtaining the labor and materials needed for the work. Much of this testimony was altogether excluded by the court, and the effect of granting the government's prayer for a |