author: BARRETT, District Judge.

text:
    THE FORT ARMSTRONG. CHARLES NELSON CO. v. USINA et al.
    District Court, S. D. Georgia, Savannah Division.
    May 21, 1931.
    Kirlin, Campbell, Hickox, Keating & McGrann, of New York City, and Lawton & Cunningham, of Savannah, Ga., for Charles Nelson Co.

      Connerat & Hunter, of Savannah, Ga., for Royal Indemnity Co.
   BARRETT, District Judge.

In the brief of proctors for the Charles Nelson Company is a concise statement of the facts and the exceptions in the above-stated cause, as follows: “United States brought .a libel in rem against the Steamship ‘Fort Armstrong’, to recover damages to the derrick boat, a part of the dredging equipment which belonged to the United States, with which the ‘Fort Armstrong came into a collision as she was being navigated up the Savannah River. H. C. Usina, a regularly-licensed pilot, was in charge of the navigation of the ship. The Charles Nelson Company is the owner and claimant of the Steamship ‘Fort Armstrong’, and it has brought a petition, under the 56th Admiralty Rule, to bring into the ease as parties, H. C. Usina, the pilot, and Royal Indemnity Company, which was the surety on a bond given by the pilot. The Charles Nelson Company contends in its petition to bring in parties, that the accident was inevitable, but that if any one was at fault it was the pilot, who was at the time navigating the ship, and that in the event the ship is held responsible, the pilot and his surety should be held liable over to The Charles Nelson Company, and that Royal Indemnity Company, as surety, shall be held liable up to the sum of $2500, which is the amount of the penalty of the surety bond.”

The exceptions:

“First: That The Charles Nelson Company is not the obligee in the bond, and has no right to maintain an action on the same, because there is no privity of contract between 'it and the Surety, and it appears from the terms of the bond that it is solely for the benefit of the obligee named therein, the Commissioners of Pilotage.
“Second: The bond by its terms varies substantially from the requirements of the Statute, and is, therefore, not a statutory bond, upon which the petitioner in its own name can maintain an action against the Surety on the bond.
“Third: The bond is not a maritime contract, and, therefore, the petition to bring in the surety is not within the admiralty jurisdiction.
“Fourth: The pleadings fail to show the breach of official duty by the pilot, and, therefore, the surety is not liable on the bond for damages occasioned by the negligence of the principal.”

First and Second.

The pilot laws as to the matter here involved are contained in section 1908 of the Civil Code of Georgia of 1910, as follows: “Before receiving his license, the pilot must make and deliver to the commissioners a bond, payable to the chairman of the board, and his successor in office, in the penal sum of two thousand dollars, with security to be approved by the commissioners, and with the condition faithfully to perform his duties as pilot, which bond shall be renewable at the discretion of the commissioners, with such security or additional security as they may require” — as amended by the Act of August 15, 1931 (Acts 1921, p. 105) as follows: “Suits thereon may be brought by any person endangered by the misconduct, carelessness or neglect of the pilot in any eourt having jurisdiction thereof, without any order for that purpose.”

The bond given by H. C. Usina, the pilot, with the Royal Indemnity Company as surety, was in compliance with the aforesaid law, with these differences: (a) The amount is $2,500 and (b) the obligee instead of being “the chairman of the board” is “the Commissioners of Pilotage.”

If the bond is a statutory bond, the act of 1921 affirmatively provides that suit can be brought by any one damaged by the pilot.

The same reásoning that led this eourt to follow the dissenting opinion of Justice Hines in the case of American Surety Co. v. Small Quarries Co., 157 Ga. 33, 120 S. E. 617, and holding that the bond therein considered was a statutory bond [the decision of this court being in the ease of Ware County v. National Surety Co., reported in 17 F.(2d) 444] leads to the conclusion that the bond in this ease is a statutory bond, certainly to the extent of $2,000.

The great weight of authority is that, even if such bond be merely a voluntary bond, the injured persons can sue on it. 13 C. J. p. 705, § 815; People’s Lumber Co. v. Gillard, 136 Cal. 55, 68 P. 576; Young v. Young, 21 Ind. App. 509, 52 N. E. 776.

Third.

The pilot, Usina, does not contend that the claim against him is not a claim in admiralty, resulting in the jurisdiction of this eourt, and the Royal Indemnity Company does not deny that this eourt has jurisdiction of the claim against the pilot.

Throughout the development of the admiralty law in this country there have arisen many difficulties in determining the jurisdiction. This arose because of the grant of jurisdiction by the Constitution and the act of 1789 being in terms most general, and further because the admiralty law of England, by reason of the jealousy of the common-law courts, was vitally different from the general admiralty law of the maritime nations of the world, and the courts of this country have, uniformly recognized that, while our common law was derived from England, we were not bound to follow the admiralty law of England.

The Charles Nelson Company contends that the contract of surety was an essential part of the maritime sendee rendered by the pilot, the sine qua non of the license to the pilot. While it is true that the ultimate liability of the surety would be measured by money, it was in terms bound by all the obligations of its principal, and the obligation of the principal was to properly perform maritime duties in accordance with his profession. Reliance is had for authority upon the case of Haller v. Fox (D. C. Wash.) 51 F. 298, and more especially upon the case of New England M. Insurance Co. v. Dunham, 11 Wall. 1, 30, 20 L. Ed. 90.

The Royal Indemnity Company contends that the obligation of it as surety is purely a common-law obligation — that is, upon certain conditions it shall pay an amount of money — and relies upon the following authorities: Pacific Surety Co. v. Leatham (C. C. A.) 151 F. 440; Eadie v. North Pacific S. S. Co. (D. C.) 217 F. 662.

If the principles established by the Supreme Court in the ease of New England M. Insurance Co. v. Dunham be applicable, they are controlling. I can see no escape from either the soundness of the principles therein stated nor from their applicability to' this case. The insurance contract as compared in the opinion in that case to a contract of af-freightment is thus stated: “The contract of the one guarantees against loss from the dangers of the sea, the contract of the other against loss from all other dangers.” The contract of insurance was merely to pay money in the event of the loss from the casualties insured against. In this ease the contract is to pay money, conditioned that, if the maritime services to be performed by the pilot were negligently performed, liability would exist. In each case the existence of the liability depended upon some occurrence on the sea. In the ease at bar it was dereliction of duty on the part of the pilot while engaged in his services.

Aside from the soundness of the foregoing principle, it would be most regrettable if it should be found necessary to establish liability on the part of the principal in one court and then be obliged to seek redress against the surety in an entirely different jurisdiction.

It has been suggested that possibly the pilot may have duties other than those that are maritime and that for some purposes at least there would be no jurisdiction over him and the surety in the court of admiralty. Whether or not such possibility exists I cannot say, but, if it does exist and divisibility is practicable, as is the ease here, admiralty has jurisdiction in the ease arising under the maritime part of the pilot’s duties. Eastern Mass. St. Ry. Co. v. Transmarine Corp. (C. C. A.) 42 F.(2d) 58; Gowanus Storage Co. v. U. S. Shipping Board Emergency Fleet Corp. (D. C.) 271 F. 528; The Thomas P. Beal (D. C.) 295 F. 877.

Fourth.

It is held that the pleadings do show breach of official duty by the pilot.

All the exceptions are therefore overruled.


source: Caselaw Access Project

author: WOOLSEY, District Judge.

license: Public Domain

text:
    UNITED STATES v. SUGAR INSTITUTE, Inc., et al.
    District Court, S. D. New York.
    June 24, 1931.
    ■ Sullivan & Cromwell, of New York,City (Wilbur L. Cummings, of New York City, •of counsel), for the motion. _
    George Z. Medalie, U. S. Atty., of New York City (James Lawrence Fly and Walter L. Rice, Sp. Assts. to Atty. Gen., of counsel), opposed.
   WOOLSEY, District Judge.

This motion is in all respects denied.

I. As the answer in this case has not yet been filed, this motion is, in so far as it asks for a bill of particulars, premature. Indeed this seems to be recognized by the plaintiff's counsel, who purports to reserve the right, in order to prepare for trial, to move for further and better particulars after the answer is filed.

This motion, therefore, will be entertained at the present time only as a motion under Equity Rule 20 (28 USCA § 723) for a further and better statement of the nature of petitioner’s claims, and under Equity Rule 21 (28 USCA § 723) as a motion to strike out certain paragraphs of the complaint as impertinent.

II. Even if this were an indictment for a conspiracy on the criminal side of the court, I think that the defendants’ motion, as above limited, would have to be denied, for the complaint names all the alleged conspirators, and adequately describes the conspiracy. Cf. United States v. United States Brewers’ Association et al. (D. C.) 239 F. 163, 170, 171; United States v. Gouled et al. (D. C.) 253 F. 239.

A fortiori in a civil case of alleged conspiracy, such as this, the allegations are sufficiently definite and certain for “a bill in equity is not to be read and construed as an indictment would have been read and construed a hundred years ago, but it is to be taken to mean what it fairly conveys to a dispassionate reader by a fairly exact use of English speech,” as Mr. Justice Holmes said in Swift & Co. v. United States, 196 U. S. 375, at page 395, 25 S. Ct. 276, 279, 49 L. Ed. 518.

Furthermore, a careful comparison of this petition with the petition in the Swift Case, as printed in the record thereof in the Supreme Court, satisfies me that the complaint in this ease is fuller and more precise in its description of the alleged conspiracy and the operation thereof than was the petition in the Swift Case.

Without stating evidence, which is.not required in pleading, I do not think the petition here could go much further than it does. It must be remembered that conspiracies of this kind are so vast that to set them forth involves in each case a new problem in pleading, as was indicated by Mr. Justice Holmes in the Swift Case, 196 U. S. at page 396, 25 S. Ct. 276, 49 L. Ed. 518.

III. I do not think that the motion to strike out paragraphs 54 and 55 of the petition on the ground that they are impertinent has any merit.

The defendants argue that those paragraphs are impertinent because an increase in profits “does not constitute a violation of the Sherman Aet.” The answer to that contention. is that a conspiracy to restrain interstate trade does violate the Sherman Act (15 USCA § 1 et seq.), and that the increased profits mentioned in the challenged paragraphs are alleged to be the result of such a conspiracy.

Settle order on two days’ notice.


author: TUTTLE, District Judge.

text:
    Petition of CALLANAN.
    No. 58097.
    District Court, E. D. Michigan, S. D.
    Aug. 11, 1931.
    O. T. Moore, District Director of Naturalization and James L. Pangle, Asst. District Director of Naturalization, both of Detroit, Mich., for the government.
   TUTTLE, District Judge.

The sole question presented by this petition for naturalization, and by the objections of the Naturalization Examiner thereto, is whether the provisions of the statutes which entitled alien World War veterans to naturalization without proof of the period of residence required of other aliens are still in. force, so that this court now has power to grant the petition of such a veteran, filed before March 4, 1931, without proof of such residence, or whether, as is claimed by the government, such power expired by limita^ ' tion. of law on that date. A reference to the history of the applicable legislation will be helpful.

Section 1 of the Act of Congress of May 9, 1918, chapter 69, 40 Stat. 542," which amended section 4 of the Act of June 29, 1906 (34 Stat. Part 1, chapter 3592, p. 596), by adding a seventh subdivision thereto, and which later became sections 391 and 392 of title 8 of the United States Code contained the following provisions: “Any alien who served in the military or naval service of the United States during the time this country was engaged in the World War, might file his petition for naturalization without making the preliminary declaration of intention and without proof of the required five years’ residence within the United States.” (8 USCA § 392). “Any person who was serving in th© military or naval forces of the United States at the termination of the World War, and any person who before the termination of said war may have been honorably discharged from the military or naval services of the United States on account of disability incurred in line of duty, shall, if he applies to the proper court for admission as- a citizen of the United States, be relieved from the necessity of proving that immediately preceding the date of his application lie has resided continuously within the United States the time required by law of other aliens, or within the State, Territory, or the District of Columbia for the year immediately preceding the date of his petition for naturalization, but his petition for naturalization shall be supported by the affidavits of two credible witnesses, citizens of the United States, identifying the petitioner as the person named in the certificate of honorable discharge, which said certificate may be accepted as evidence of good moral character required by law, and he shall comply with the other requirements of the naturalization .law.” (8 USCA §391).

Section 1 of the Sundry Civil Appropriation Act of June 19, 1919, chapter 24, 41 Stat. 222, contained the following- provision: “Any person of foreign birth who' served in-the military or naval forces of the United States during the present war, after final examination and acceptance hy the said military or naval authorities, and shall have been honorably discharged after such acceptance and service, shall have the benefits of the seventh subdivision of section 4 of the Act of June 29, 1906, Thirty-fourth Statutes at Large, part 1, page 596, as amended, and shall not be required to pay any fee therefor; and this provision shall continue. for the period of one year after all of the American troops are returned to the United States.”

Section 7 of the Act of May 26, 1926, chapter 398, 44 Stat. 655, provided as follows : “An alien veteran shall, if residing in the United States, be entitled, at any time within two years after the enactment of this Act, to naturalization upon the same terms, conditions, and exemptions which would have been accorded to such alien if he had petitioned before the armistice of the 'World War, except that such alien shall be required to appear and file his petition in person and to take the prescribed oath of allegiance, in open court.”

Section 1 of said Act (8 USCA § 241) defined the term “alien veteran,” so used, as meaning “an individual, a member of the military or naval forces of the United States at any time after April 5, Í917, and before November 12, 1918, who is now an alien not ineligible to citizenship,”' with certain exceptions not material here.

Section 3 of the Act of March 4, 1929, chapter 683, 45 Stat. 1546 (8 USCA § 392a) provided as follows: “An alien Veteran, as defined in section 241 of this title, shall, if residing in the United States, be entitled, at any time within two years after the enactment of this Act, to naturaliza^ tion upon the same terms, conditions, and exemptions which would have been accorded to such alien if he had petitioned before the armistice of the World War, except that such alien shall be required to appear and file his petition in person and to take the prescribed oath of allegiance in open court.”

Under the familiar rule that a statute which is inconsistent with a later statute is impliedly repealed thereby (United States v. Yuginovich, 256 U. S. 450, 41 S. Ct. 551, 65 L. Ed. 1043), it is clear that the 1918 statute already quoted, providing a special naturalization procedure for alien veterans of the World War, was, by necessary implication, repealed and superseded by the subsequent 1919 statute expressly limiting the force and effect of such special procedure to the period of one year after the return of all of the American troops to the United States. Eor the same réason, the last-mentioned statute was itself supplanted by the 1926 Act extending, but limiting, the effective life of this particular procedure to, two years after the effective date of that act, which in turn was superseded by the 1929 statute providing that such alien veterans should be “entitled, at any time within two years after March 4, 1929, to naturalization” upon compliance with the special procedural requirements thereby prescribed. If the obvious-intention of Congress, in the exercise of its plenary power over naturalization, as expressed in this legislation, is to be given effect, as manifestly it must be, there can be no doubt that at the time of the filing of the naturalization petition here involved (which was subsequent to the enactment of the Act of March 4, 1929 and prior to March 4, 1931) the enjoyment by the petitioner of the privilege of being naturalized in accordance with the special terms and conditions prescribed by this statute was subject to the condition that such petitioner was so “entitled” to such “naturalization” only “at any time within two years after March 4, 1929.”

The suggestion that the limiting effect of this statute should not be applied to naturalization petitions actually filed and pending while such statute was in full force and effect, as that would be to illegally interfere with vested rights, is clearly without merit.

The statute in question relates to procedure rather than to vested rights, and it is well settled that a statute which merely terminates or changes legal jurisdiction or procedure and does not affect vested rights applies to actions and proceedings pending at the time of the enactment of such statute as well as to those not then commenced, in the absence, as here, of a saving clause expressly providing otherwise. Baltimore & Potomac Railroad Co. v. Grant, 98 U. S. 398, 25 L. Ed. 231; Hallowell v. Commons, 239 U. S. 506, 36 S. Ct. 202, 60 L. Ed. 409.

Moreover, even if this statute should be considered as involving not merely matters of procedure but also a right, on the part of the aliens affected, to be naturalized in accordance with its provisions, it is plain that such “right” is one only in an exceedingly limited sense and that, in substance, it is merely a privilege and a matter of grace wholly subject to the will of Congress. Johannessen v. United States, 225 U. S. 227, 32 S. Ct. 613, 56 L. Ed. 1066; United States v. Ginsberg, 243 U. S. 472, 37 S. Ct. 422, 61 L. Ed. 853. Congress, therefore, could limit or remove this privilege which it had granted to a certain class of aliens, of naturalization on the special terms so prescribed, at any time before sueh privilege had been fully exercised and given full effect by the orders of the proper court admitting sueh aliens to citizenship, just as a state, which could have originally withheld from a corporation the power to condemn property, may subsequently “withdraw the power before its exercise, and it could not be exercised before the conditions of condemnation were established and adjudicated, and this not preliminarily or dependently, but in final and unreviewable determination.” Western Union Telegraph Co. v. Louisville & Nashville Railroad Co., 258 U. S. 13, 42 S. Ct. 258, 261, 66 L. Ed. 437.

I reach the conclusion and hold that the provision in the Act of March 3, 1929, limiting the time for naturalization thereunder to two years after that date applies to petitions filed before March 4, 1931, pursuant to said act, as well as to petitions not then filed, and that therefore the petition here involved must be denied. An order will be entered accordingly.


author: WOODROUGH, District Judge.

text:
    FIRST TRUST CO. OF OMAHA et al. v. ALLEN, Collector of Internal Revenue.
    No. 2531.
    District Court, D. Nebraska, Omaha Division.
    July 14, 1931.
   WOODROUGH, District Judge.

George A. Hoagland died seized -of lands in Missouri, Nebraska, and Iowa, and his executors were required to pay estate taxes in respect to the value thereof. The taxes were laid under section 402 (a) of the Revenue Act of 1921 (42 Stat. 278) and were paid under protest. This suit is to recover the money back on the ground that no lawful tax could be laid against the plaintiffs under that section. Its relevant language is:

“See. 402. That the value of the gross estate of the decedent shall be determined by including the value at the time of his death of all property, real or personal, tangible or intangible, wherever situated—
“(a) To the extent of the interest therein of the decedent at the time of his death which after his death is subject to the payment of the charges against his estate and the expenses of its administration and is subject to distribution as part of his estate.”

The District Court in Missouri, the Circuit Court of Appeals in this circuit, and the Supreme Court held in the ease of Harrelson that the section does not authorize any tax in respect to lands of decedents located in the state of Missouri [28 F.(2d) 510; 35 F.(2d) 416; 282 U. S. 55, 51 S. Ct. 49, 75 L. Ed. 156]. This court is clearly bound by those decisions to award judgment to- the plaintiffs here for the part of their payment attributable to the lands in Missouri, and it will be so ordered. I am not persuaded, however, that the decisions conclude this court from expressing its opinion as to the Nebraska and Iowa lands. The ground of decision in the Harrelson Case was. that in Missouri the lands of a decedent are not subject .to the payment of the expenses of the administration of the estate, and for that reason their value should not be included to make up the gross valuation for estate taxes. Though the decision is binding on this court and must be followed here in so far as the same facts are involved, considerations concerning the purport and intent of the statute are presented here which the opinions of the three courts and the brief of the government in the Harrelson Case disclose were not called to the attention of those courts. In such situation it is the duty of this court to assert its own judgment thereon. Webster v. Fall, 266 U. S. 507, 45 S. Ct. 148, 69 L. Ed. 411; U. S. v. Mitchell, 271 U. S. 9, 46 S. Ct. 418, 70 L. Ed. 799.

Notwithstanding certain discussions of the statute found in the opinions of the courts in the Harrelson Case following what was said about the same statute in the case of U. S. v. Field, 255 U. S. 257, 41 S. Ct. 256, 65 L. Ed. 617, 18 A. L. R. 1461, it appears to me that section 402 of the Revenue Act of 1921 with its subdivisions taken - together with section 403 (42 Stat. 279) should be interpreted so as. to justify’and compel the taxes laid in respect to Mr. Hoagland’s Nebraska and Iowa lands. The estate tax sections as I read them express the intent of Congress to impose a tax on the net estate of decedents, by determining the value of the gross in a very broad inclusive way, adding many items that are not within the ordinary concept of decedents’ estates, and then later on specifying particularly the deductions to arrive* at the taxable net. To accomplish the obvious purpose, section 401 (42 Stat. 277) starts out and imposes the tax “upon the transfer of the net estate of every decedent.” Section 402 then opens with the declaration that to value the gross estate there shall be included “the value at the time of his death of all property, real or personal, tangible or intangible, wherever situated” — these are inclusive words, but not inclusive enough to answer the purpose of Congress. That purpose as stated was to carry this tax far beyond the ordinary concept of decedents’ estates. Congress was determined to include in this gross valuation interests of surviving spouses and gifts causa mortis and properties which decedent had transferred in trust during his lifetime and properties held in entirety with other persons and even insurance money — things that are in no lawyer’s sense any part of a decedent’s estate. To accomplish this purpose and draw these unrelated things together under the general tax imposition contained in the opening paragraph of section 402, Congress follows up the general declaration that the gross valuation for tax shall inelude all property with a phrase very apt for its object, namely, “to the extent.” It says, in substance, that the gross value of decedent’s estate shall be determined by including the value of all property “to the extent” of property given away by him and to the extent of the proceeds of life insurance policies and to the extent of the interest of a surviving spouse. The phrase admits of no ambiguity and lends itself perfectly to the broadening out of the opening sentence of the section as was intended.

Congress uses the same phrase to introduce subdivision a. It says all the property “to the extent of the interest therein of the decedent at the time of his death which after his death is subject to the payment of the charges against his estate and the expenses of its administration and is subject to distribution.” Here it is noted that the conjunctive “and” is used between “charges against his estate” and “expenses of its administration.” Observing how the* phrase “to the extent” is used throughout to expand and broaden and bring in the extraneous, it seems patent to me that the.real function of the conjunctive “and” in the clause is to amplify the phrase “to the extent” and increase “the extent.” • It all means, as I view it, the value of the gross estate shall be determined by including the value of all the property of the decedent “to the extent of the interest of the decedent • * • * which * '* * is subject to the payment of charges * * * and [to the extent that* it] is subject to the expenses of its administration and [to the extent that it] is subject to distribution as part of his estate.”

Such an interpretation effectuates the intention of Congress to lay a uniform tax nationally and does not offend against the context.

The alternative reading has apparently appealed to the jurists who have studied the section. That alternative is to read the conjunctive “and” as the equivalent of a proviso. They read the whole: “The value of the gross estate shall be determined by including the value of all the property to the extent of the interest of the decedent * * * which * * * is subject to charges against his estate (and provided) it is subject to the expenses of administration * * * (and provided) it is subject to distribution.” It is not to be argued that the conjunctive “and” never approximates a proviso. But certainly not always, and it does not appear to me to be according to the intent of Congress in this instance. »

Inasmuch as this consideration of the real meaning of the statute has been urged upon this court and apparently was not presented to the other courts when the matter was studied, I have felt called upon to state my conclusion. I do not, however, decide the ease upon it.

It appears clear to me that, under the Nebraska and the Iowa statutes, lands belonging to a decedent at the time of his death are subject to the expenses of its administration and are also subject to distribution as part of his estate. It is true that in the matter of procedure and as concerning only the order in which the different kinds of assets shall be applied in the course of administration personal property must be used first and then realty. But both are to be resorted to if necessary. That being so, both are “subject” within the meaning of the statute.

It is argued that in particular estates like this one, where there is plenty of personalty, the lands are not “subject” to the charges against the estate or expenses of administration because all such disbursements will be made out of the personalty and the lands will not be so applied. The argument appears to me to be without merit.

Judgment should be awarded the plaintiffs for the amount paid in respect of Missouri lands only, and judgment for defendant as to the other claims.


author: PER CURIAM.

text:
    In the Matter of Petition of Mohamed ABRAHAM for Writ of Habeas Corpus.
    No. 5887.
    Circuit Court of Appeals, Sixth Circuit.
    March 5, 1931.
    Catherine G. Herlehy, of Detroit, Mich., for appellant.
    Gregory H. Frederick, U. S. Atty., of Detroit, Mich., for appellee.
   PER CURIAM.

Docketed and dismissed by court order, pursuant to motion of counsel for appellee.


text:
    Mahamet ALI or Mohamed Ali v. John L. ZURBRICK, District Director of Immigration.
    No. 5899.
    Circuit Court of Appeals, Sixth Circuit.
    June 9, 1931.
    Catherine G. Herlehy, of Detroit, Mich., for appellant.
    Gregory H. Frederick, U. S. Atty., of Detroit, Mich., for appellee.
   PER CURIAM.

Dismissed by court order for failure to make deposit for printing under the rule.


author: BUFFINGTON, Circuit Judge.

text:
    AMDYCO CORPORATION, Appellant, v. Radcliffe Morris URQUHART et al., Appellees.

    No. 4470.
    Circuit Court of Appeals, Third Circuit.
    Aug. 24, 1931.
    Pennie, Davis, Marvin & Edmonds, of New York City, Ballard, Spahr, Andrews & Ingersoll, of Philadelphia, Pa., and Appleton, Rice & Perrin, of New York City (W. Brown Morton, of New York City, and Boyd Lee Spahr, of Philadelphia, Pa., of counsel), for appellant.
    J. G. Denny, Jr., of Philadelphia, Pa., for American Fomon Co.
    J. C. Bedford, of Philadelphia, Pa., for R. M. Urquhart.
    Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.

       Rehearing denied November 2, 1931.

   BUFFINGTON, Circuit Judge.

This case concerns the delicate question of the relative rights of employer and employee where the latter has made an invention during his employment. Cases of that character have from time to time been before this court, and the principles involved have been stated in several eases, among which we now refer to Pressed Steel Car Co. v. Hansen, 137 F. 403, 2 L. R. A. (N. S.) 1172, and Ingle v. Landis Tool Co., 272 F. 464. In the latter ease, after referring to the Hansen Case, we said: .“In the absence of an express contract or agreement to invent, the relation of employer and employee did not vest the employer with the entire property, right of an invention of the employee, and to the patent monopoly thereof, or to anything more than a shop right to use such invention.”

The court below [39 F.(2d) 943] correctly applied these principles to the facts before it, and discussed the proofs in such detail and with so much thoroughness as to leave nothing to he added on our part. After a study of the proofs on our part, we also are satisfied that, in addition to the absence of any contract to invent, there were no facts or circumstances from which such a contract could be inferred. In view of the fact that the principles involved are clear and that the facts have been thoroughly discussed by the court, we refrain from again restating them, and limit ourselves to affirming the decree of the court below.


text:
    William M. ANDREWS v. COMMISSIONER OF INTERNAL REVENUE.
    No. 5551.
    Circuit Court of Appeals, Sixth Circuit.
    June 9, 1931.
    Kennedy, Manchester, Ford, Bennett & Powers, of Youngstown, Ohio, for petitioner.
    C. M. Charest, of Washington, D. C., for respondent.
   PER CURIAM.

Order of Board of Tax Appeals reversed upon authority of Burnet v. Logan, 283 U. S. 404, 51 S. Ct. 550, 75 L. Ed. 1143.


text:
    ARCHIBALD McNEIL & SONS COMPANY, Plaintiff in Error, v. WESTERN MARYLAND RAILWAY COMPANY, Defendant in Error.
    No. 4518.
    Circuit Court of Appeals, Third Circuit.
    Aug. 19, 1931.
    Geo. Demming, of Philadelphia, Pa., and John R. Geyer and Paul G. Smith, both of Harrisburg, Pa., for plaintiff in error.
    Geo. C. Doub and Eugene S. Williams, both of Baltimore, Md., and Spencer G. Nau-man, of Harrisburg, Pa., for defendant in error.
    Before DAVIS and THOMPSON, Circuit Judges, and SCHOONMAKER, District Judge.
   PER CURIAM.

This was an action of trespass brought by Archibald McNeil & Sons Company to recover damages alleged to have been caused by the Western Maryland Railway Company in giving an undue and unreasonable preference and advantage in violation of sections 3, 8, and 9 of the Interstate Commerce Act (49 USCA §§ 3, 8, and 9). The District Court of the Middle District of Pennsylvania, sitting without a jury, entered judgment for the defendant [42 F.(2d) 669], and the plaintiff appealed to this court.

We have carefully considered the case, and are satisfied that error was not committed. We can add nothing to the able discussion of the case by the learned District Judge. The law declared by him is supported by the findings, which are based on substantial evidence.

We therefore affirm the judgment on his opinion.

Affirmed.


text:
    Homer BAIN, Appellant, v. UNITED STATES of America, Appellee.
    No. 6443.
    Circuit Court of Appeals, Ninth Circuit.
    Aug. 3, 1931.
    Before WILBUR and SAWTELLE, Circuit Judges.
   PER CURIAM.

Pursuant to stipulation of counsel for respective parties, ordered appeal herein dismissed; mandate forthwith.


text:
    Mrs. Mary W. BOHANNON, Appellant, v. NATIONAL SURETY COMPANY, Appellee.
    No. 3199.
    Circuit Court of Appeals, Fourth Circuit
    June 29, 1931.
    Louie A. Whitener, of Hickory, N. C., for appellant.
    J. E. Swain, of Asheville, N. C., for ap-pellee.
   PER CURIAM.

Cause docketed and dismissed on motion of appellee.


author: PEE CURIAM.

text:
    Arch BROWN v. UNITED STATES of America.
    No. 5961.
    Circuit Court of Appeals, Sixth Circuit.
    June 30, 1931.
    W. J. Carter, U. S. Atty., of Knoxville, Tenn.
   PEE CURIAM.

Docketed and dismissed by court order, pursuant to motion of counsel for appel-lee.


text:
    John W. BROWN and Joseph Landon, Appellants, v. UNITED STATES of America, Appellee.
    No. 6488.
    Circuit Court of Appeals, Ninth Circuit.
    Sept. 2, 1931.
    Before WILBUR and SAWTELLE, Circuit Judges.
   PER CURIAM.

Pursuant to motion of counsel for respective parties, ordered appeal herein dismissed; mandate forthwith.


text:
    C. B. BUCHANAN, A. Cellers, J. W. Bailey, and H. F. Reese, Petitioners, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.
    No. 6598.
    Circuit Court of Appeals, Ninth Circuit.
    Aug. 29, 1931.
    Before WILBUR and SAWTELLE, Circuit Judges.
   PER CURIAM.

Upon motion of counsel for respondent, consented to by counsel for petitioners, ordered petition to review in above cause dismissed without prejudice to rights of any of the parties; mandate forthwith. •


text:
    CATAWBA CONSTRUCTION COMPANY, Appellant, v. NATIONAL SURETY COMPANY, Appellee.
    No. 3200.
    Circuit Court of Appeals, Fourth Circuit.
    June 29, 1931.
    Louie A. Whitener, of Hickory, N. C., for appellant.
    J. E. Swain, of Asheville, N. C., for ap-pellee.
   PER CURIAM.

Cause docketed, and dismissed on motion of appellee.


text:
    COLUMBUS GAS & FUEL CO. and Federal Gas & Fuel Co. v. CITY OF COLUMBUS, OHIO.
    No. 5064.
    Circuit Court of Appeals, Sixth Circuit.
    June 30, 1931.
    See, also, 42 F.(2d) 379; 17 F.(2d) 630.
    Eagleson & Laylin and John P. Wilson, all of Columbus, Ohio, for appellants.
    Charles A. Leach' and James M. Butler, both of Columbus, Ohio, for appellee.
   PER CURIAM.

Appeal dismissed, with instructions to dismiss bill of complaint without prejudice.


text:
    COLUMBUS GAS & FUEL CO. v. CITY OF COLUMBUS, OHIO.
    No. 5066.
    Circuit Court of Appeals, Sixth Circuit.
    June 30, 1931.
    See, also, 42 F.(2d) 379; 17 F.(2d) 630.
    Eagleson & Laylin and John F. Wilson, all of Columbus, Ohio, for appellant.
    Charles A. Leach and James M. Butler, both of Columbus, Ohio, for appellee.
   PER CURIAM.

Appeal dismissed, with instructions to dismiss bill of complaint without prejudice.


text:
    COMMISSIONER OF INTERNAL REVENUE, Petitioner, v. Mrs. Gladys BILICKE, Respondent. COMMISSIONER OF INTERNAL REVENUE, Petitioner, v. Mrs. Nancy DE ROULET, Respondent. COMMISSIONER OF INTERNAL REVENUE, Petitioner, v. Mrs. Gladys BILICKE, Guardian of Carl A. Bilicke, Minor, Respondent. COMMISSIONER OF INTERNAL REVENUE, Petitioner, v. Mrs. Gladys BILICKE, Guardian of A. Constant Bilicke, Minor, Respondent.
    Nos. 6559-6562.
    Circuit Court of Appeals, Ninth Circuit.
    Aug. 10, 1931.
    G. A. Youngquist, Asst. Atty. Gen., and C. M. Charest, Gen. Counsel, Bureau of Internal Revenue, of Washington, D. C., for petitioner.
    Claude I. Parker and Ralph W. Smith, both of Los Angeles, Cal., for respondents.
    Before SAWTELLE, Circuit Judge, and ST. SURE, District Judge.
   PER CURIAM.

Pursuant to motion of counsel for petitioner, consented to by counsel for respondents, ordered petition to review in each of above causes dismissed without prejudice to rights of any party; mandate in each cause forthwith.


text:
    COMMISSIONER OF INTERNAL REVENUE v. Homer S. JOHNSON and Charles B. Johnson, Executors of Estate of Stephen O. Johnson, Deceased.
    No. 5325.
    Circuit Court of Appeals, Sixth Circuit.
    April 15, 1931.
    C. M. Charest, of Washington D. C., for petitioner.
    H. E. Spalding, of Detroit, Mich., for respondents.
   PER CURIAM.

Order of Board of Tax Appeals affirmed upon authority of May v. Heiner, 281 U. S. 238, 50 S. Ct. 286, 74 L. Ed. 826, 67 A. L. R. 1244, and journal entry of Supreme Court affirming Commissioner v. Northern Trust Co. (C. C. A.) 41 F.(2d) 732.


text:
    COMMISSIONER OF INTERNAL REVENUE v. METROPOLITAN SECURITIES CORP.
    No. 5921.
    Circuit Court of Appeals, Sixth Circuit.
    April 7, 1931.
    C. M. Charest, of Washington, D. C., for petitioner.
    Bulkley, Hauxhurst, Jamison & Sharp, of Cleveland, Ohio, for respondent.
   PER CURIAM.

Docketed and dismissed by court order, pursuant to stipulation of counsel.


text:
    COMMISSIONER OF INTERNAL REVENUE v. Sophia WEIL, Adm’x of Estate of Joseph Weil, Deceased.
    No. 5874.
    Circuit Court of Appeals, Sixth Circuit.
    June 9, 1931.
    C. M. Charest, of Washington, D. C., for petitioner.
    Gaylord Debout, of Detroit, Mich., for respondent.
   PER CURIAM.

Order of Board of Tax Appeals reversed, and cause remanded for further proceedings in accordance with stipulation.


text:
    In the Matter of Petition of Hichko DANOFF for Writ of Habeas Corpus.
    No. 5922.
    Circuit Court of Appeals, Sixth Circuit.
    April 8, 1931.
    John G. Romanoff, of Detroit, Mich., for petitioner.
    J. G. McIntosh, Asst. U. S. Atty., of Detroit, Mich., for appellee.
   PER CURIAM.

Doeketed and dismissed by court order, pursuant to stipulation of counsel.


text:
    EUROPAISCHER VERBAND DER FLASCHENFABRIKEN v. OWENS BOTTLE CO. et al.
    No. 5739.
    Circuit Court of Appeals, Sixth Circuit.
    May 13, 1931.
    Peck, Shaffer & Williams, of Cincinnati, Ohio, and Fraser, Hiett, Wall & Effler, of Toledo, Ohio, for appellant.
    Geddes, Schmettau, Williams, Eversman & Morgan and Tracy, Chapman & Welles, all of Toledo, Ohio, and Boyd, Cannon, Brooks & Wickham, of Cleveland, Ohio, for appellees.
   PER CURIAM.

Judgment of District Court affirmed by court order, pursuant to agreement of the parties.


text:
    FEDERAL GAS & FUEL CO. v. CITY OF COLUMBUS, OHIO.
    No. 5065.
    Circuit Court of Appeals, Sixth Circuit
    June 30, 1931.
    See, also, 42 F.(2d) 379; 17 F.(2d) 630.
    Eagleson & Laylin and John F. Wilson, all of Columbus, Ohio, for appellant.
    Charles A. Leach and James M. Butler, both of Columbus, Ohio, for appellee.
   PER CURIAM.

Appeal dismissed, with instructions to dismiss bill* of complaint without prejudice.


text:
    Alfred FOSTER et al. v. UNITED STATES of America.
    No. 5955.
    Circuit Court of Appeals, Sixth Circuit.
    June 9, 1931.
    David Himmelstein, of Nashville, Tenn., for appellants.
    A. V. McLane, U. S. Atty., of Nashville, Tenn.
   PER CURIAM.

Docketed and dismissed by court order, pursuant to motion of counsel for appellee.


text:
    FRISCHKORN REAL ESTATE CO. v. COMMISSIONER OF INTERNAL REVENUE.
    No. 5964.
    Circuit Court of Appeals, Sixth Circuit.
    June 30, 1931.
    Theo. B. Benson, of Washington, D. C., for petitioner.
    C. M. Charest, of Washington, D. C., for respondent.
   PER CURIAM.

Docketed and dismissed by court order, pursuant to motion of counsel for petitioner.


text:
    Sam GOLDBERG v. UNITED STATES of America.
    No. 5823.
    Circuit Court of Appeals, Sixth Circuit.
    April 17, 1931.
    Rodney Baxter, of Detroit, Mich., for appellant.
    Gregory H. Frederick, U. S. Atty., of Detroit, Mich.
   PER CURIAM.

Judgment of District Court affirmed by court order. '


text:
    GRAND BEACH COMPANY et al. v. Frank G. GARDNER, Trustee, et al.
    No. 5730.
    Circuit Court of Appeals, Sixth Circuit.
    April 17, 1931.
    Sempliner, Dewey, Stanton & Bushnell, of Detroit, Mich., for appellants.
    Travis, Merrick & Johnson, of Grand Rapids, Mich., A. S. & E. W. Frochlich, of Chicago, Ill., and Knappen, Uhl & Bryant, of Grand Rapids, Mich., for appellees.
   PER CURIAM.

Remanded to District Court, with directions for disposition in accordance with decree entered April 10, 1931, in Gardner v. Grand Beach Co. et al., 48 F.(2d) 491.


text:
    GREAT LAKES TOWING CO. v. KINSMAN TRANSIT CO.
    No. 5663.
    Circuit Court of Appeals, Sixth Circuit.
    March 4, 1931.
    Dustin, McKeehan, Merrick, Arter & Stewart, of Cleveland, Ohio, for appellant.
    Holding, Duncan & Leckie, of Cleveland, Ohio, for appellee.
   PER CURIAM.

Judgment of District Court affirmed by court order.


text:
    George H. GRENANDER, Appellant, v. UNITED STATES of America, Appellee.
    No. 3174.
    Circuit Court of Appeals, Fourth Circuit.
    July 7, 1931.
    Arthur G. Froe, of Welch, W. Va., and Raye O. Lawson, of Roanoke, Va., for appellant.
    James Damron, U. S. Atty., of Huntington, W. Va.
   PER CURIAM.

Order dismissing appeal filed.


text:
    GREYHOUND LINES, INC., OF INDIANA v. Wm. H. HAMPTON, Adm’r of Estate of Harriet Ann Tomecek, Deceased.
    No. 5732.
    Circuit Court of Appeals, Sixth Circuit.
    May 11, 1931.
    • Hartshorn, Thomas & Abele, of Cleveland, Ohio, for appellant.
    E. S. Crudele and M. C. Harrison, both of Cleveland, Ohio, for appellee.
   PER CURIAM.

Judgment of District Court affirmed by court order.


text:
    HART CORPORATION, Bankrupt, v. STROM-BERG MOTOR DEVICES CO. and Detroit & Security Trust Co., Trustee in Bankruptcy of Hart Corporation, Bankrupt.
    No. 5675.
    Circuit Court of Appeals, Sixth Circuit.
    April 10, 1931.
    Goodenough, Voorheis, Long & Ryan, of Detroit, Mich., for appellant.
    George E. Brand and Lightner, Oxtoby, Hanley & Crawford, all of Detroit, Mich., for appellees.
   PER CURIAM.

Dismissed by court order pursuant to stipulation of counsel.


text:
    Henry W. HEEDY v. COMMISSIONER OF INTERNAL REVENUE.
    No. 5548.
    Circuit Court of Appeals, Sixth Circuit.
    June 9, 1931.
    Kennedy, Manchester, Ford, Bennett & Powers, of Youngstown, Ohio, for petitioner.
    C. M. Charest, of Washington, D. C., for respondent.
   PER CURIAM.

Order of Board of Tax Appeals reversed upon authority of Burnet v. Logan.


text:
    William D. HEINSELMAN v. UNITED STATES of America.
    No. 5962.
    Circuit Court of Appeals, Sixth Circuit.
    June 30, 1931.
    Robert N. Brumbaugh and E. L. Mikesell, both of Dayton, Ohio, for appellant.
    Haveth E. Mau, U. S. Atty., of Cincinnati, Ohio.
   PER CURIAM.

Docketed and dismissed by court order, pursuant to motion of counsel for appellee.


text:
    William J. HITCHCOCK v. COMMISSIONER OF INTERNAL REVENUE.
    No. 5549.
    Circuit Court of Appeals, Sixth Circuit.
    June 9, 1931.
    Kennedy, Manchester, Ford, Bennett & Powers, of Youngstown, Ohio, for petitioner.
    C. M. Charest, of Washington, D. C., for respondent.
   PER CURIAM.

Order of Board of Tax Appeals reversed upon authority of Burnet v. Logan.


text:
    HOME MORTGAGE COMPANY and First National Bank of Durham, a Corporation, Petitioners, v. Margaret M. RAMSEY, Respondent.
    No. 3115.
    Circuit Court of Appeals, Fourth Circuit.
    Nov. 25, 1930.

      For opinion on merits, see 49 F.(2d) 738.
    See, also, 47 F.(2d) 621.
    Jones Fuller, of Durham, N. C., and Allen Wardwell, of New.York City, for petitioners.
    R. Clarence Dozier, of South Mills, N. C., and R. Palmer Ingram, of Baltimore, Md., for respondent.
   PER CURIAM.

Application for stay of proceedings denied, provided, etc. Order filed.


text:
    R. C. HORNE, Jr., Petitioner, v. UNITED STATES of America, Respondent.
    No. 3202.
    Circuit Court of Appeals, Fourth Circuit.
    July 3, 1931.
    See, also, 51 F.(2d) 66.
    , R. C. Horne, Jr., of Columbia, S. C., in pro. per.
    S. Henry Edmunds, Jr., Asst. U. S. Atty., of Charleston, S. C.
   PER CURIAM.

Order denying motion filed.


text:
    Gilford T. HUGHES and Jeannie Hughes v. UNITED STATES of America.
    No. 5925.
    Circuit Court of Appeals, Sixth Circuit.
    May 5, 1931.
    O. Guy Frick, of Detroit, Mich., for appellants.
    Ken F. Corbitt, Asst. U. S. Atty., of Detroit, Mich., for appellee.
   PER CURIAM.

Judgment of District Court reversed as to Gilford T. Hughes, and Jeannie Hughes permitted to withdraw appeal, pursuant to stipulation of counsel.


text:
    In the Matter of Petition of Roman KOSZIL for Writ of Habeas Corpus.
    No. 5932.
    Circuit Court of Appeals, Sixth Circuit.
    May 11, 1931.
    Catherine G. Herlehy, of Detroit, Mich., for appellant.
    J. G. McIntosh, Asst. U. S. Atty., of Detroit, Mich., for appellee.
   PER CURIAM.

Docketed and dismissed by court order, pursuant to stipulation of counsel.


text:
    LANG BODY COMPANY OF DELAWARE v COMMISSIONER OF INTERNAL REVENUE.
    No. 5920.
    Circuit Court of Appeals, Sixth Circuit.
    April 7, 1931.
    Robert Hardison, of Washington, D. C., for petitioner.
    C. M. Charest, of Washington, D. C., for respondent.
   PER CURIAM.

Docketed and dismissed by court order, pursuant to motion of counsel for respondent.


author: PER, CURIAM.

text:
    John LOBONTIU v. John R. NORTHRUP, Immigration Commissioner.
    No. 5902.
    Circuit Court of Appeals, Sixth Circuit.
    June 13, 1931.
    Stanton & Connell and Victor M. Todia, all of Cleveland, Ohio, for appellant.

      W. J. Mahon, U. S. Atty., of Cleveland, Ohio, for appellee.
   PER, CURIAM.

Judgment of District Court affirmed upon authority of Phillippides v. Day, 283 U. S. 48, 51 S. Ct. 358, 75 L. Ed. 833, decided by Supreme Court on March 23, 1931.


text:
    Charles LOSI, Appellant, v. UNITED STATES of America, Appellee.
    No. 442.
    Circuit Court of Appeals, Second Circuit.
    July 17, 1931.
    Jacob A. Mandelbaum and Isidore Mesi-bov, both of New York City (Aiken A. Pope, of New York City, of counsel), for appellant.
    Howard W. Ameli, U. S. Atty., of Brooklyn, N. Y. (Herbert H. Kellogg, Asst. U. S. Atty., of Brooklyn, N. Y., of counsel), for the United States.
    Before L. HAND, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
   PER CURIAM.

Judgment affirmed.


text:
    Minnie LYNCH v. UNITED STATES of America.
    No. 5933.
    Circuit Court of Appeals, Sixth Circuit
    May 11, 1931.
    Floyd Estill, of Chattanooga, Tenn., for appellant.
    W. J. Carter, U. S. Atty., of Knoxville, Tenn.
   PER CURIAM.

Docketed and dismissed by court order,_ pursuant tci motion of counsel for appellee.


text:
    Mary Madeline McCALLISTER et al., Apellants, v. William H. MOORE, Jr., Trustee, etc., Appellee.
    No. 6457.
    Circuit Court of Appeals, Ninth Circuit.
    Aug. 29, 1931.
    Before WILBUR and SAWTELLE, Circuit Judges.
   PER CURIAM.

Upon consideration of stipulation of counsel for respective parties, and good cause therefor appearing, ordered appeal in this cause dismissed; mandate forthwith.


text:
    Lewis McCOY and Harry White v. UNITED STATES of America.
    No. 5956.
    Circuit Court of Appeals, Sixth Circuit.
    June 9, 1931.
    Haveth E. Mau, U. S. Atty., of Cincinnati, Ohio, for appellee.
   PER CURIAM.

Docketed and dismissed by court order, pursuant to motion of counsel for appellee.


author: STONE, Circuit Judge.

text:
    Peter MARKINKOVITCH, Appellant, v. UNITED STATES of America, Appellee.
    No. 9117.
    Circuit Court of Appeals, Eighth Circuit.
    Aug. 24, 1931.
    J. R. Lones, of Omaha, Neb. (Raymond T. Coffey, of Omaha, Neb., on the brief), for appellant.

      Edson Smith, Asst. U. S. Atty., of Omaha, Neb. (Charles E. Sandall, .U. S. Atty., and Ambrose C. Epperson, Asst. U. S. Atty., both of Omaha, Neb., Robert Van Pelt, Asst. U. S. Atty., of Lincoln, Neb., and Lawrence I. Shaw, Asst. U. S. Atty., of Omaha, Neb., on the brief), for the United States.
    Before STONE and GARDNER, Circuit Judges, and YOUMANS, District Judge.
   STONE, Circuit Judge.

This is an appeal from a conviction on three counts of an indictment, each charging sale of intoxicants.

The indictment was in four counts, three for different sales and one for possession of certain described liquor. The liquor described in the possession count was found in the basement of an adjoining building. The court directed a verdict upon the possession count, and the only errors urged here are that it was erroneous to submit this liquor to the grand jury and that it was erroneous for the government to attempt to offer it in evidence, as such offer influenced the trial jury. Neither of these grounds is properly raised in the trial court, neither is properly raised in the specification of errors, and there is no virtue in either. This appeal is so wanting in merit that it is frivolous.

The judgment is affirmed, and it is ordered that the mandate issue forthwith.


text:
    MARSHALL BROTHERS LUMBER CO. v. COMMISSIONER OF INTERNAL REVENUE.
    Nos. 5460, 5461.
    Circuit Court of Appeals, Sixth Circuit.
    April 7, 1931.
    Harry Schwartz, of Washington, D. C., for petitioner.
    C. M. Charest, of Washington, D. C., for respondent.
   PER CURIAM.

Order of Board of Tax Appeals reversed, and cause remanded pursuant to stipulation of counsel.


text:
    A. R. MOORE, Appellant, v. Finch R. ARCHER, Warden of the U. S. Penitentiary at McNeil Island, Washington, Appellee.
    No. 6610.
    Circuit Court of Appeals, Ninth Circuit.
    Sept. 14, 1931.
    Before WILBUR and SAWTELLE, Circuit Judges, and WEBSTER, District Judge.
   PER CURIAM.

Pursuant to motion of counsel for the appellee, ordered appeal dismissed for failure of appellant to file record and docket cause; mandate forthwith.


text:
    In the Matter of Geo. F. NISSEN, as Trustee in Bankruptcy of Hyman AUGUST, Bankrupt, Petitioner.
    No. 3203.
    Circuit Court of Appeals, Fourth Circuit.
    July 8, 1931.
    Carlisle, Brown & Carlisle, of Spartanburg, S. C., for petitioner.
   PER CURIAM.

Order denying appeal filed.


author: PER CÜRIAM.

text:
    NORTH AMERICAN OIL CONSOLIDATED, Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.
    No. 6599.
    Circuit Court of Appeals, Ninth Circuit.
    Aug. 29, 1931.
    Before WILBUR and SAWTELLE, Circuit Judges.
   PER CÜRIAM.

Upon motion of counsel for respondent, consented to by counsel for petitioner, ordered petition to review of North American Oil Consolidated dismissed; mandate forthwith.


text:
    OVERPECK LAND CORPORATION et al., Plaintiffs-Appellants, v. VILLAGE OF RIDGEFIELD PARK, West Shore Railroad Company, et al.
    No. 4548.
    Circuit Court of Appeals, Third Circuit.
    Aug. 19, 1931.
    Donald M. Waesche, of Ridgefield Park, N. J. (Mark A. Sullivan, of Jersey City, N. J., of counsel), for appellants.
    Wm. J. Morrison, Jr., and Morrison, Lloyd & Morrison, all of Hackensack, N. J., for appellee Village of Ridgefield Park.
    Wall, Haight, Carey & Hartpence, of Jersey City, N. J., for appellees West Shore R. Co., and another.
    Before BUFFINGTON, DAVIS, and THOMPSON, Circuit Judges.
   PER CURIAM.

This is an appeal from a judgment [43 F.(2d) 597] entered by the trial judge sitting without a jury for the defendants in an ejectment suit. Every substantial question raised here was raised in the District Court and correctly decided there, and the judgment is affirmed on the opinion of the learned District Judge.

Affirmed.


text:
    Joe PASCUZZI v. UNITED STATES of America.
    No. 5822.
    Circuit Court of Appeals, Sixth Circuit.
    April 17, 1931.
    Rodney Baxter, of Detroit, Mich., for appellant.
    Gregory H. Frederick, U. S. Atty., of Detroit, Mich.
   PER CURIAM.

Judgment of District Court affirmed by court order.


text:
    Roy PASCUZZI v. UNITED STATES of America.
    No. 5821.
    Circuit Court of Appeals, Sixth Circuit.
    April 17, 1931.
    Rodney Baxter, of Detroit, Mich., for appellant.
    Gregory H. Frederick, U. S. Atty., of Detroit, Mich.
   PER CURIAM.

Judgment of District Court affirmed by court order.


text:
    PATHE EXCHANGE, Inc., et al., Appellants, v. WALT DISNEY PRODUCTIONS, Limited, Appellee.
    No. 6493.
    Circuit Court of Appeals, Ninth Circuit.
    Sept. 2, 1931.
    Before WILBUR and SAWTELLE, Circuit Judges.
   PER CURIAM.

Pursuant to motion of counsel for appellants, approved by counsel for appellee, ordered appeal dismissed without eosts to either party; mandate forthwith.


text:
    Antimo PETRACCI, alias Mike Petrucchia, v. UNITED STATES of America.
    No. 5888.
    Circuit Court of Appeals, Sixth Circuit.
    June 13, 1931.

      Thos. E. Antonelli, of Youngstown, Ohio, for appellant.
    W. J. Mahon, U. S. Atty., of Cleveland, Ohio.
   PER CURIAM.

Judgment of District Court affirmed by court order.


text:
    Lloyd L. PETTY, Appellant, v. UNITED STATES of America, Appellee.
    No. 3205.
    Circuit Court of Appeals, Fourth Circuit.
    July 9, 1931.
    Kenneth J. Kindley, of Charlotte, N. C., for appellant.
    Thos. A. McCoy, Asst. U. S. Atty., of Asheville, N. C.
   PER CURIAM.

Case docketed and dismissed on motion of appellee.


text:
    Giuseppe RADE (or Joe Rade) Appellant, v. UNITED STATES of America, Ap-pellee.
    No. 6553.
    Circuit Court of Appeals, Ninth Circuit.
    Aug. 3, 1931.
    For opinion below, see 47 F.(2d) 912.
    ' Before WILBUR and SAWTELLE, Circuit Judges.
   PER CURIAM.

Pursuant to stipulation of counsel for respective parties, ordered appeal herein dismissed; mandate forthwith.


text:
    REO MOTOR CAR CO. v. AUTOMOTIVE DAILY NEWS PUBLISHING CO.
    No. 5702.
    Circuit Court of Appeals, Sixth Circuit.
    March 5, 1931.
    Poster & Cameron, of Lansing, Mich., for appellant.
    Lucking, Hanlon, Van Auken & Sprague, of Detroit, Mich., and Jos. Schultz, of New York City, for appellee.
   PER CURIAM.

Dismissed by court order pursuant to stipulation of counsel.


text:
    Carl F. ROUTZAHN, Collector of Internal Revenue, v. LANDESMAN-HIRSCHHEIMER COMPANY.
    No. 5923.
    Circuit Court of Appeals, Sixth Circuit.
    April 17, 1931.
    W. J. Mahon, U. S. Atty., of Cleveland, Ohio, for appellant.
    Mooney, Hahn, Loeser, Keough & Beam, of Cleveland, Ohio, for appellee.
   PER CURIAM.

Dismissed by court order, pursuant to motion of counsel for appellant.


author: PEE CUEIAM.

text:
    George A. SCOTT and William Larber, Appellants, v. Percy S. STEPHENSON, Trustee in Bankruptcy of NORFOLK RESIDENCE CORPORATION, Bankrupt, H. M. Kerr, Trustee in Bankruptcy of GUARANTY TITLE & TRUST CORPORATION, Bankrupt, Margaret W. Kearney, J. B. Lascara, and Anna T. Lapetina, Appellees.
    No. 3123.
    Circuit Court of Appeals, Fourth Circuit.
    April 25, 1931.
    L. P. Matthews, of Norfolk, Va., for appellants.
    S. M. Brandt and Charles L. Kaufman, both of Norfolk, Va., for appellees.
   PEE CUEIAM.

Case dismissed under rule 20 per agreement of counsel.


text:
    Mrs. Carrie L. SHAW, Executrix of Estate of John Shaw, v. COMMISSIONER OF INTERNAL REVENUE.
    Nos. 5552-5554.
    Circuit Court of Appeals, Sixth Circuit.
    June 9, 1931.
    Kennedy, Manchester, Ford, Bennett & Powers, of Youngstown, Ohio, for petitioner.
    C. M. Charest, of Washington, D. C., for respondent.
   PER CURIAM.

Orders of Board of Tax Appeals reversed upon authority of Burnet v. Logan, 283 U. S. 404, 51 S. Ct. 550, 75 L. Ed. 1143.


text:
    In the Matter of Petition of Jan SIELIWONCZYK for Writ of Habeas Corpus.
    No. 5919.
    Circuit Court of Appeals, Sixth Circuit.
    April 7, 1931.
    Catherine G. Herlehy, of Detroit, Mich., for appellant.
    Gregory II. Frederick, U. S. Atty., of Detroit, Mich., for appellee.
   PER CURIAM.

Docketed and dismissed by court order,, pursuant to motion of counsel for appellee.


text:
    Benjamin Franklin SPENCER, Plaintiff-Appellant, v. Lawson G. MARTIN, Defendant-Appellee.
    No. 4442.
    Circuit Court of Appeals, Third Circuit.
    Aug. 20, 1931.
    A. O. Fording, of Pittsburgh, Pa., and Wm. E. Pfau and Charles Koonce, both of Youngstown, Ohio, for appellant.
    C. H. Sachs, Sachs & Caplan, and Louis Caplan, all of Pittsburgh, Pa., for appellee.
    Before BUFFINGTON, WOOLLEY, and THOMPSON, Circuit Judges.
   BUFFINGTON, Circuit Judge.

The proofs in this case tend to show that Spencer, the appellant, and Martin, the ap-pellee, both of whom were experienced in automobile distribution, had some preliminary negotiations looking to the formation of a corporation in which both were to take stock and which corporation was to secure a sales agency for a certain automobile. This agency was not secured and the corporation was never formed. If the agency had been secured and the corporation formed, the automobile business owned by Martin would ■naturally have been acquired by the corporation, but on what terms had not been determined. The project having fallen through and Martin having no sales agency, Martin offered to dispose of his business to Spencer, but they could not agree on a sales price, so, as Spencer had not bought Martin’s stock on hand, and as he had contributed neither money nor property thereto, and as Martin had no sales agency, he proceeded to close out and liquidate the stock on hand. True, it appears Spencer claimed an interest in the business, but, on Martin denying he had any interest, Spencer apparently acquiesced, the proof being “he left Martin to wind up the business alone.” In its final opinion tbe court found that Spencer “made no contribution whatever to the capital of the business; all of the moneys were paid in by Martin,” and that “Martin, of course, must be reimbursed for his financial investment.”

After such liquidation by Martin, Spencer filed a bill against him for an accounting, alleging a partnership existed, and praying an accounting. On hearing, an accounting, for some months’ operation during the efforts to get the sales agency as above stated was ordered. On such accounting the master reported and exceptions to his report were disposed of by the court, which held that Martin was not indebted to Spencer. We have carefully examined the proofs,- and are satisfied the court below was justified in its conclusions. In its opinion it discussed and analyzed the facts, held that under the circumstances of the case “the defendant should not be penalized for failure to take a physical inventory of automobile parts on March 11,1917, any more than the plaintiff should.” It reasoned: “What better evidence would the Master need of the value of parts on hand at that time (August first) than the actual sale price of these parts in the open market? * * * There was nothing to do but liquidate the business. Certainly the sale price of the automobile parts would then be an important element in fixing the value as of August first if they were honestly sold by the defendant.” It further held that the costs up to that time be divided.

Without entering into further discussion of the ease, which has been done so thoroughly by the court below, we limit ourselves to stating that we find ourselves in accord with the court below in the method of accounting it directed and in the correctness’ of the results reached thereby.

The decree below is therefore affirmed; the appellant to pay the costs of this appeal.


text:
    Thomas STACY, Appellant, v. UNITED STATES of America, Appellee.
    No. 6608.
    Circuit Court of Appeals, Ninth Circuit.
    Sept. 15, 1931.
    Before WILBUR and SAWTELLE, Circuit Judges, and WEBSTER, District Judge.
   PER CURIAM.

Pursuant to stipulation of counsel for the respective parties, ordered appeal dismissed; mandate forthwith.


text:
    Thomas H. TRACY et al. v. LANDOVER HOLDING CO. et al.
    No. 5317.
    Circuit Court of Appeals, Sixth Circuit.
    June 30, 1931.
    Tracy, Chapman & Welles, of Toledo, Ohio, for appellants.
    Cotton, Franklin, Wright & Gordon, of New York City, for appellees.
   PER CURIAM.

Agreed order of settlemént. entered pursuant to stipulation of counsel.


text:
    George (alias Doc) TRUSLEY v. UNITED STATES of America.
    No. 5884.
    Circuit Court of Appeals, Sixth Circuit.
    May 15, 1931.
    Rankin, Frazier & Roberts, of Chattanooga, Tenn., for appellant.
    W. J. Carter, U. S. Atty., of Knoxville, Tenn.
   PER CURIAM.

Judgment of District Court affirmed by court order.


text:
    UNITED STATES of America v. Carl W. FARMER.
    No. 5963.
    Circuit Court of Appeals, Sixth Circuit.
    June 30, 1931.

      A. V. McLane, U. S. Atty., of Nashville, Tenn.
   PER CURIAM.

Docketed and dismissed by court order, pursuant to motion of counsel for appellant.


text:
    UNITED STATES of America, Appellant, v. Robert A. VINES, Appellee.
    No. 3180.
    Circuit Court of Appeals, Fourth Circuit.
    June 22, 1931.
    Joseph A. Tolbert, U. S. Atty., of Green-ville, S. C., and J. C. Willcox, U. S. Veterans’ Bureau, of Columbia, S. C.
    Mays & Featherstone, of Greenwood, S. C., for appellee.
   PER CURIAM.

Case dismissed under rule 20 per agreeiment of counsel.


text:
    WACHOVIA BANK & TRUST COMPANY, Appellant, v. NATIONAL SURETY COMPANY, Appellee.
    No. 3206.
    Circuit Court of Appeals, Fourth Circuit.
    July 9, 1931.
    Louis M. Bourne, of Asheville, N. C., for appellant.
    J. E. Swain, of Asheville, N. C., for ap-pellee.
   PER CURIAM.

Cause docketed and dismissed on motion of appellee.


text:
    F. W. WALTON v. UNITED STATES of America.
    No. 5935.
    Circuit Court of Appeals, Sixth Circuit.
    May 13, 1931.
    Newman Brandon, Jr., of Nashville, Tenn., for appellant.
    A. V. McLane, U. S. Atty., of Nashville, Tenn.
   PER CURIAM.

Docketed and dismissed by court order, pursuant to stipulation of counsel.


text:
    Luther WEEDIN, as U. S. Commissioner of Immigration at Seattle, Wash., Appellant, v. Arthur Oliver Nicolai AMUNDSEN, Appel-lee.
    No. 6333.
    Circuit Court of Appeals, Ninth Circuit.
    Sept. 14, 1931.
    Anthony Savage, U. S. Atty., and Hamlet P. Dodd, Asst. U. S. Atty., both of Seattle, Wash., for appellant.
    Charles P. Moriarty and Stanley J. Pad-den, both of Seattle, Wash., for appellee.
    Before WILBUR and SAWTELLE, Circuit Judges, and WEBSTER, District Judge.
   PER CURIAM.

Pursuant to stipulation of counsel for respective parties, ordered order of District Court reversed,'that appellee be permitted to ship from the United States upon steamship to foreign country and disembark in such country, and upon proof of departure the bond to be exonerated; mandate stayed 60 days.


text:
    William WILKINS, Appellant, v. UNITED STATES of America, Appellee.
    No. 3196.
    Circuit Court of Appeals, Fourth Circuit.
    June 19, 1931.
    M. B. Simpson and P. G. Sawyer, both of Elizabeth City, N. C., for appellant.
    W. H. Fisher, U. S. Atty., of Clinton, N. C.
   PER CURIAM.

Case docketed and dismissed on motion of appellee.


text:
    Will WOODEN v. UNITED STATES of America.
    No. 5814.
    Circuit Court of Appeals, Sixth Circuit.
    May 15, 1931.
    Geo. W. Chamlee, of Chattanooga, Tenn., for appellant.
    W. J. Carter, U. S. Atty., of Knoxville, Tenn.
   PER CURIAM.

Judgment of District Court affirmed by court order.


text:
    Harry WYNBRANDT v. UNITED STATES of America.
    No. 5828.
    Circuit Court of Appeals, Sixth Circuit.
    April 15, 1931.
    Howell Leuck, of Cleveland, Ohio, for appellant.
    W. J. Mahon, U. S. Atty., of Cleveland, Ohio.
   PER CURIAM.

Judgment of District Court affirmed by court order.


text:
    John L. ZURBRICK, District Director of Immigration, v. Tom KORONAS.
    No. 5930.
    Circuit Court of Appeals, Sixth Circuit.
    May 5, 1931.
    Gregory H. Frederick, U. S. Atty., of Detroit, Mich., for appellant.
    O. Guy Frick, of Detroit, Mich., for appellee.
   PER CURIAM.

Docketed and dismissed by court order, pursuant to motion of counsel for appellant.


author: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Arnulfo RODRIGUEZ, Defendant-Appellant.
    No. 74-2387.
    United States Court of Appeals, Fifth Circuit.
    March 21, 1975.
    Rehearing and Rehearing En Bane Denied June 3, 1975.

      Sam A. Westergren, Jr., Corpus Christi, Tex. (Court-appointed), for defendant-appellant.
    Anthony J. P. Farris, U.S. Atty., Edward B. McDonough, B. Stephen Rice, James R. Gough, Mary L. Sinderson, Asst. U.S. Attys., Houston, Tex., for plaintiff-appellee.
    Before WISDOM and DYER, Circuit Judges, and KRAFT, District Judge.

       Senior District Judge of the Eastern District of Pensylvania, sitting by designation.

   PER CURIAM:

Rodriguez seeks reversal of his conviction for the distribution of 17 grams of heroin in violation of 21 U.S.C. § 841(a)(1). On this appeal Rodriguez claims that he was denied his right to a speedy trial, that the identification of him by a Drug Enforcement Administration agent was tainted, and that he was denied a fair trial because of various alleged errors on the part of the trial court. We have carefully reviewed the record and, finding these contentions to be without merit, affirm.

On May 10, 1973, Agent Havens of the Drug Enforcement Administration, working undercover in Corpus Christi and accompanied by an informant, Pedigo, picked up Rodriguez’ co-defendant Storbeck in Havens’ car. Havens was to buy an ounce of heroin and was to pay Storbeck to be his contact with the source. The three met a 1965 red Plymouth in which there were two persons. As Storbeck went over to the Plymouth the passenger was recognized as co-defendant Adame. Storbeck got into the car, gave the money to Adame, and the red car drove off. When the car returned, Storbeck got out and returned to Havens’ car, delivering the 17 grams of heroin. At that time, Havens observed the driver, whom he later identified from police photographs, as Rodriguez.

Rodriguez’ defense was mistaken identity. Storbeck testified that he did not know either of the individuals in the red Plymouth. Sam Garcia, owner of the car, testified that he had never loaned the car to Rodriguez, but that Rodriguez was a friend of his brother, Guadalupe, who often used the car. Rodriguez attempted to introduce the criminal record of Guadalupe Garcia, but was not permitted to do so by the court. Rodriguez did not testify at the trial.

The offense occurred on May 10, 1973. An indictment was returned on July 25, 1973. Rodriguez was arrested on August 3, 1973, and remained incarcerated until trial, unable to make $1,000 bond. He filed a pro se motion for speedy trial on September 17, 1973. An attorney was appointed on September 1,9. A superseding indictment had been returned on September 7. Arraignment took place on September 24. A motion for discovery was filed on October 15, and was partially denied and partially granted on November 8. A motion to dismiss for lack of speedy trial was filed on February 11, 1974, and a hearing on the motion was held on March 15. The motion was denied on March 28. The jury was chosen on April 15, and trial was concluded on April 23, 1974.

Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), sets out the criteria by which courts are to judge whether a defendant has been denied the right of speedy trial. They are: (1) length of the delay; (2) reason for the delay; (3) whether or not the defendant asserted his right to a speedy trial, and (4) whether the delay prejudiced the defendant. Here Rodriguez came to trial within a year from the date of the offense. The court noted in its reasons for denying the motion that it had an extremely crowded docket, and that there was no Assistant United States Attorney permanently assigned to the Corpus Christi division. See United States v. Rodriguez, 497 F.2d 172 (5 Cir. 1974). Rodriguez has made no showing that he was prejudiced by the delay. Neither at the time of his arrest nor at any time since has he been -able to account for his whereabouts on the day in question. The three-month delay between the offense and indictment is governed strictly by the statute of limitations. United States v. Judice, 457 F.2d 414 (5 Cir. 1972). Another three months or so was taken up with various motions. Rodriguez has not shown prejudice which would amount to a denial of due process of law. United States v. Davis, 487 F.2d 112 (5 Cir. 1973).

After the drug purchase, Agent Havens selected Rodriguez’ picture from police photographs. At trial, he testified that his identification was based on his independent recollection, though he did keep Rodriguez’ picture in his case file. In Hines v. Beto, 473 F.2d 1034 (5 Cir. 1973), we held that the existence of an independent basis of in-court identification obviates the necessity of considering the constitutionality of the pretrial identification.

Rodriguez claims he was prejudiced when Agent Havens testified that he secured information as to appellant’s middle name and birthdate from “the criminal transcript.” There was objection to this statement. The court overruled the objection stating that Rodriguez’ counsel had opened the door by asking a question which elicited the statement. This was not error.

Rodriguez next asserts that he should have been allowed to introduce into evidence the criminal record and driver’s license of Guadalupe Garcia to support his defense of mistaken identity. He desired to prove that he and Garcia were similar in appearance and that it must have been Garcia that Havens had seen in the car. The court would not allow the criminal record or driver’s license in evidence, ruling that the offer of proof was inconclusive and lacking in materiality and that it would tend to divert the attention of the jury from the facts of the case on trial. It was not shown that Garcia was unavailable as a witness. Apparently he could have been called on Rodriguez’ behalf. The jury could have observed the physical appearance of the two men firsthand. In these circumstances, the court did not abuse its discretion.

After the jury retired to deliberate, they requested that testimony concerning the driver of the red Plymouth be read to them. This testimony was reread. Later, the jury asked for the judge’s definition of reasonable doubt. The court had given a lengthy instruction on reasonable doubt, and refused to repeat the instruction. It is not ah abuse of discretion by the trial court to refuse to repeat an instruction when the jury has already been given complete instructions on the subject. United States v. Middlebrooks, 431 F.2d 299 (5 Cir. 1970); Eisenhardt v. United States, 406 F.2d 449 (5 Cir. 1969). Rodriguez conceded that the instruction was complete.

A review of the record reveals no reversible error.

Affirmed.


author: HOLLOWAY, Circuit Judge.

text:
    In the Matter of M. R. WADDELL, Bankrupt-Appellant, v. Donald E. FLEMING, d/b/a Gardner Grain Co., Respondent-Appellee.
    No. 74-1135.
    United States Court of Appeals, Tenth Circuit.
    Argued Aug. 23, 1974.
    Decided Jan. 29, 1975.
    Certiorari Denied June 16, 1975.
    See 95 S.Ct. 2629.
    John M. Cleary, Kansas City, Mo. (Charles E. Whitman, Lawrence, Kan., on the brief), for bankrupt-appellant.
    Robert B. Oyler, Lawrence, Kan. (James E. Salyer, Lawrence, Kan., on the brief), for respondent-appellee.
    Before HILL, SETH and HOLLOWAY, Circuit Judges.
   HOLLOWAY, Circuit Judge.

This bankruptcy appeal presents the question whether a farm of a bankrupt which is exempt property as a homestead under Kansas law is to be included among his assets in determining whether he is insolvent within the meaning of § 67a of the Bankruptcy Act, 11 U.S. C.A. § 107(a). The Bankruptcy Judge held the property is so included and the District Court agreed. 388 F.Supp. 643. We affirm.

Briefly the facts are as follows. Prior to July 22, 1971, appellee Fleming filed suit in the District Court of Douglas County, Kansas, against appellant Wad-dell to recover for sales of feed to Wad-dell from July, 1969, through December, 1970. On November 22, 1971, judgment was obtained by Fleming in the amount of $11,261.63, plus interest.

This judgment became a lien on the real estate — a 160 acre farm — owned by Waddell, under the provisions of K.S.A. § 60 — 2202. Execution was issued on the judgment and the land was to be sold by the sheriff of Douglas County, Kansas, on January 11, 1972. However on December 21, 1971, Waddell filed a voluntary petition in bankruptcy in the United States District Court for the District of Kansas, and thereafter obtained a stay of execution of the sale.

The bankruptcy schedules filed by Waddell listed secured creditors’ claims-totaling $22,000, priority claims in the amount of $400, and unsecured creditors’ claims in the amount of $13,584. This latter sum included the $11,261 judgment of Fleming. The schedules listed assets consisting primarily of the farm, in which Waddell’s interest was estimated at $100,000. In addition, some items of personal property were listed, including an automobile and household goods valued at $1,180. In the summary of debts and assets in Waddell’s schedules, total debts listed were $35,984, and total assets listed were $101,211.

However, Waddell claimed all of his assets as exempt property, the farm being claimed as a homestead. Following a contested hearing on December 1, 1972, the farm was found to qualify as a homestead and was set off as exempt, together with other items of personal property, on December 8, 1972.

On January 9, 1973, Waddell filed an application under § 67a of the Bankruptcy Act seeking to have the lien of the judgment in favor of Fleming declared null and void on the ground that it was obtained within four months before the filing of the petition in bankruptcy at a time when Waddell was insolvent as defined in § 1(19) of the Bankruptcy Act, 11 U.S.C.A. § 1(19).

It was stipulated that Waddell’s financial condition was substantially the same on the date the judgment in favor of Fleming was rendered as it was at the time Waddell filed his petition in bankruptcy. (R. 46, 48). Thus it is apparent, and was further stipulated (R. 46), that whether Waddell was insolvent when Fleming’s lien was obtained turns on whether his exempt property, in particular his equity in the homestead, is considered as an asset for the purpose of determining insolvency with respect to the application to avoid the judgment lien under § 67 a. •

Appellant Waddell contended that, in determining the issue of insolvency, one must first deduct from the aggregate of the bankrupt’s property all of his exemptions. As stated, the Bankruptcy Judge rejected this contention and went on to hold that Waddell had failed to sustain the burden of proving that he was insolvent at any time within the four-month period preceding the filing of his petition in bankruptcy. (R. 26-28). He found that Waddell was not insolvent within the meaning of the Bankruptcy Act when Fleming’s judgment lien was obtained or at any time within the four-month period preceding the filing of his bankruptcy petition. (R. 22). The views of the Bankruptcy Judge were sustained by the District Court (R. 48-50), and this appeal followed.

Section 67a of the Bankruptcy Act provides, in relevant part, as follows:

Every lien against the property of a person obtained by attachment, judgment, levy, or other legal or equitable process or proceedings within four months before the filing of a petition initiating a proceeding under this Act or against such person shall be deemed null and void (a) if at the time when such lien was obtained such person was insolvent .

Under the statute the insolvency of the bankrupt is a condition precedent to the voiding of a lien. As the person seeking the benefit of § 67 a to avoid the lien, the burden was on Waddell to establish his insolvency at the time the lien was obtained. See 4 Collier on Bankruptcy, If 67.05 at 99-100 (14th ed. 1971).

On this appeal, appellant Waddell first contends that Fleming, having been a party to the adjudication of bankruptcy, is now estopped to deny that Waddell was insolvent on the date of the judgment creating the lien. He advances the following syllogism in support of this argument: (1) the adjudication of bankruptcy establishes that he, Waddell, was insolvent on that date, and this determination is now both res judicata and the law of the case; (2) it is stipulated that his financial condition was substantially the same on the date the judgment creating the lien was rendered as it was at the time of the filing of the petition in bankruptcy (R. 46); and (3) therefore, he must have been equally as insolvent at the time Fleming obtained his judgment lien as at the time he was adjudicated bankrupt.

We reject this contention because the conclusion drawn is not sound. It does not necessarily follow that, because Waddell’s financial condition was substantially the same on the date of the state court judgment as it was on the date he filed for bankruptcy, the adjudication of bankruptcy determines his insolvency for purposes of § 67a on the former date. Bankruptcy and insolvency for purposes of § 67a are two different legal conclusions and facts supporting one do not necessarily support the other. The question of Waddell’s insolvency on the date the judgment lien was obtained, for purposes of § 67a, was not at issue and was in no way determined by the adjudication of his bankruptcy. See Liberty National Bank v. Bear, 265 U.S. 365, 370, 44 S.Ct. 449, 68 L.Ed. 1057; 4 Collier on Bankruptcy, ¶ 67.05 at 99-100 (14th ed. 1971). Certainly the Bankruptcy Judge who adjudicated Waddell bankrupt did not believe that adjudication determined the issue of Waddell’s insolvency for purposes of § 67a, for he also found that Waddell was not insolvent when Fleming’s judgment was obtained.

Since we cannot accept appellant Wad-dell’s argument that the issue of his insolvency is settled by an estoppel or res judicata or the law of the case, we will examine the merits of that issue directly.

The definition of insolvency provided in § 1(19) of the Bankruptcy Act is controlling here with respect to insolvency for purposes of § 67a. That definition is as follows:

A person shall be deemed insolvent within the provisions of this Act whenever the aggregate of his property, exclusive of any property which he may have conveyed, transferred, concealed, removed, or permitted to be concealed or removed, with intent to defraud, hinder, or delay his creditors, shall not at a fair valuation be sufficient in amount to pay his debts.

This definition expressly excludes from the aggregate of a person’s property only such fraudulent transfers and concealments. It does not expressly exclude property which is exempt under state law. Accordingly, it has been generally held that such exempt assets, including homesteads, are to be considered in determining the question of insolvency for purposes of deciding the validity of liens obtained within the four-month period preceding bank bankruptcy. See e. g., Lasswell v. Stein-Block Co., 93 F.2d 322 (5th Cir.); 1 Collier on Bankruptcy, ¶ 1.19 at 110-11 (14th ed. 1971) (and cases therein cited); but see In re Armstrong, 145 F. 202, 205 (S.D.Iowa), modified sub nom. Coder v. Arts, 152 F. 943 (8th Cir.), aff’d, 213 U.S. 223, 29 S.Ct. 436, 53 L.Ed. 772.

The rulings of the Bankruptcy Judge and the District Court followed this general rule in holding, with respect to Waddell’s application for relief under § 67a, that Waddell’s equity in his homestead was to be included in determining his solvency on the date Fleming’s judgment was obtained. Waddell does not dispute that the generally accepted view supports rulings. However he urges this court to adopt a construction of § 1(19) in accord with the view expressed in In re Armstrong, supra, which would exclude exempt property in determining solvency. Appellant Waddell argues, inter alia, that this is necessary to obtain consistency in concepts and definitions. He says it is illogical that the exempt property be included to determine solvency here, when neither the trustee nor creditors can reach such property. And he contends that the harmonizing construction suggested is particularly proper since the bankrupt 'can now invoke § 67 to declare liens void, as well as the trustee.

We cannot agree. The language of § 1(19) is unambiguous. Its intent seems clear. In broad terms it calls for taking into account “ . . . the aggregate of [the bankrupt’s] property . . . save only for the limited exclusion for fraudulently conveyed or concealed property. Since the statute unambiguously makes only one general exclusion, we feel we should not recognize another, despite the appealing policy argument made. Rather, we must presume, since only the one general exclusion was made, that Congress intended to go only as far as it did. In re Hines, 144 F. 142, 144 (D.Or.); and see Colorado Public Interest Research Group et al. v. Train et al., 507 F.2d 743 (10th Cir. 1974).

As noted above, it was stipulated that if appellant Waddell’s equity in his homestead is considered as an asset for the purpose of determining his solvency, his assets were greater than his liabilities on the date when the state court judgment creating the lien in favor of Fleming was rendered. We conclude it was proper to include Waddell’s equity in the homestead among his assets for this purpose in connection with the application under § 67a to avoid the judgment lien. Therefore we sustain the finding and conclusion that he was not then insolvent with the meaning of § 67a, and affirm the denial of his application to have the judgment lien declared void.

The case being adequately disposed of on this basis, it is unnecessary for us to consider the question of precisely when Fleming’s judgment lien attached for purposes of § 67a.

Affirmed.

      . In the summary of debts and assets in Wad-dell’s schedules (R. 15), the exemptions claimed were $101,211 — the total of his property. However, in schedule B-5 (R. 13), where exemptions are claimed, the total value claimed was $100,200.