text:
    TALLMAN v. LADD et al.
    (Circuit Court of Appeals, Fourth Circuit.
    April 14, 1925.)
    No. 2313.
    1. Equity <©=>418, 419 — Entry of decree pro oonfesso held warranted", and court’s refusal to open default or suspend decree not abuse of discretion. ■
    Decree pro confesso held properly entered, under rule 29, in suit for accounting and removal of executrix of estate, on defendant’s failure to answer within 5 days after denial of her motion to dismiss, nor was court’s refusal to open the default, or to suspend, alter, or rescind the decree pro' confess.o, an abuse of his discretion, under rules 5 and 17.
    2. Executors and administrators <§=>35(19)— Order denying motion to dismiss, heard after entry of decree appointing receiver, held adjudication of duly contested matter, reviewable on appeal from decree.
    Where, after entry of decree removing executrix and appointing receiver, decree was operied to extent of motion of executrix to dismiss on ground that testator’s daughter took property to exclusion of plaintiffs, held, refusing motion to dismiss was an adjudication of a duly contested matter, properly reviewable on appeal from order removing executrix and appointing receiver.
    3. Wills <§=>681 (I) — Testator’s daughter held not to take absolute fee in estate, to exclusion of possible remaindermen.
    Where testator gave all of estate to wife and daughter, share and share alike, but provided that, if wife survived daughter, daughter’s interest in estate should go to certain others, brothers and sisters of testator, held, daughter did not take an absolute fee simple, to exclusion of possible remaindermen, which was inherited by her mother.
    4. Appeal and error <§=>865 — On appeal from default decree, defendant can only question sufficiency of bill to warrant decree.
    On appeal from default decree, defendant cannot urge want or insufficiency of testimony, but can contest decree on ground that it was unwarranted by bill.
    5. Executors and administrators <§=>35(0— Removal of executrix for failure to keep accounts free from confusion held unwarranted.
    Where testator appointed wife as executrix .of his estate, without bond, security, or ap-praisement, her mere failure through mistake to keep her accounts free from confusion held insufficient to warrant her removal, and appointment of receiver.
    6. Receivers <§=>14 — Receiver of estate not appointed, except where clear necessity appears.
    Receiver will not be appointed to take charge of an estate intrusted by testator to executrix or trustee, except where it clearly appears necessary to protect and preserve trust property, in which case clear proof of misconduct or fraud, or danger of loss, is required.
    Appeals from tbe District Court of tbe United States for the Northern District of West Virginia, at Wheeling; William E. Baker, Judge.-
    Suit by George T. Ladd and others against Caroline G. Tallman, executrix of the will of Albert P. Tallman and guardian of Helen Tallman, personally and in her own right. Decree for plaintiffs, and defendant appeals.
    Decree modified.
    1 Henry M. Russell, of Wheeling, W. Va. (Hubbard & Hubbard, of Wheeling, W. Va., on the brief), for appellant.
    George R. E. Gilchrist, of Wheeling, W. Va., for appellees.
    Before WOODS, WADDILL, and ROSE, Circuit Judges.
   WOODS, Circuit Judge.

The will of Albert P. Tallman, dated October 10,1903, was as follows:

“Eirst. I give and bequeath all of my personal and real property to my beloved wife Carrie and to my blessed child Helen, one half to each, share and share alike. I wish no appraisement nor inventory made.
“Second. Should my beloved wife Carrie survive my little daughter Helen, then Helen’s share is to go to her mother for the latter’s use during her life and at the mother’s death said share (Helen’s) is to be divided equally between my brother Wilbur, my sisters, Mary Topping, Elen English and my sister Cornelia Ladd’s estate. Should my brother Wilbur be not living at the date when the' distribution just mentioned b-e made if made at all, then said share (Helen’s) is to be divided into three equal parts, one going to my sister Mary or her estate, one to my sister Ellen or hér estate and the remaining one to the estate of my sister Cornelia Ladd that is to say, this last named third is to be divided equally between George, Louis and Elizabeth Ladd, her children.
“Third. I hereby appoint my beloved wife administratrix of this my last will and testament without bond or security and I would suggest that she act as guardian of our little daughter Helen without bond, security or ap-praisement.”

The testator died in 1904, and his widow, Caroline G. Tallman, qualified as executrix and as guardian of her daughter, Helen, giving a bond without security in the former capacity of $150,000, and in the latter of $75,000. Helen died in 1919, unmarried, at the age of 20. Mary Topping died in 1909, and Wilbur Tallman in 1914. There is no dispute that the plaintiffs are the persons entitled to one-half of the corpus of the estate under the second clause of the will, unless under the first clause one-half went to Helen in fee, and was inherited by her mother as her sole heir.

Plaintiffs filed their bill on- October 12, 1922, alleging that they were entitled to a remainder in one-half of the estate after the death of Caroline G. Tallman; that Caroline G. Tallman had qualified as executrix and had mismanaged her trust, in that she had not made an inventory of the estate; that she had not kept the corpus and income separate; that she had improperly so'ld securities; that she had made incorrect application of a number of items; that she had not on request given plaintiffs an account of her management of the estate and the amount and condition of the trust funds. The bill asked for the removal of Caroline G. Tallman as executrix, the appointment of a receiver of the estate, and an accounting. The proceedings under the bill were as follows :

Defendant moved to dismiss the bill May 12, 1923; the motion was denied August 11, 1923; decree pro confesso was entered November 26, 1923, for failure to answer within five days as required by rule 29. After presentation by the plaintiffs of the bill and evidence in support of it on May 5, 1924, a deeree of the District Judge was made May 13, 1924, removing Caroline G. Tallman “as trustee for plaintiffs as remaindermen,” appointing the National Bank of Wheeling receiver of certain securities aggregating in value about $115,000, embraced in a list submitted by defendant to plaintiffs as representing the trust estate, and appointing a special master to take the accounts of the executrix and ascertain the amount and status of the prpperty in controversy.

On May 20,1924, the defendant again tendered a motion to dismiss the bill on the specific ground that testator’s daughter, Helen, took under his will an absolute interest in one-half of the estate, which upon her death went by descent to her mother, Caroline G. Tallman. The court, as we understand the record, opened the default to the extent of hearing the motion to dismiss, and after argument again refused to dismiss the bill. The defendant then moved the court to open the decree pro confesso as to the appointment of a receiver. This motion was refused. A motion to open the default and allow the defendant to answer was also refused.

No answer having been filed in 5 days after the motion to dismiss was denied, the decree pro confesso was properly entered under rule 29. The District Judge had discretion under rule 5 to suspend, alter, or rescind the deeree pro confesso entered by the clerk. If, as defendant’s counsel said, they were unable to restate the accounts so as to make a proper answer within the time, application should have been made to the District Judge to suspend the decree pro eonfesso for the requisite time. No such application having been made, and 30 days having elapsed from the entry of the deeree pro confesso, the court rightfully heard the case on the bill and ex parte proof, and made the decree absolute against the defendant. There is no ground to say that the discretion conferred on the District Judge by rule 17 was arbitrarily exercised to the extent that he refused to open the default.

When the District Judge opened the decree of May 13, 1924, to the extent of allowing defendant’s counsel to move to dismiss the bill on the new ground that the daughter Helen took an absolute estate in fee simple to the exclusion of the plaintiffs, the order refusing the motion to dismiss was the adjudication of a duly contested matter which is properly here for review on appeal from the deeree of May 13, 1924. The correctness of this ruling of the court on the construction of the will was necessarily involved in the order appointing the receiver, for, if the plaintiffs have no interest in the estate, of course they have no right to a receivership.

We agree with the District Judge in the construction of the will. Its language seems perfectly plain, and we are referred to no technicalities of construction in West Virginia which deny effect to the expressed intention of the testator. In the first clause the testator gives his estate to his wife and child, one-half to each, and then he said in the second clause, if his wife should he the survivor, she should have the use of the daughter’s share for her life, and that it should then go to the persons now represented by the plaintiffs. The gift of the absolute estate appearing from the first clause was thus cut down to a life estate by plain and unequivocal language, intended to be read with the first clause. Henry v. Haymond, 77 W. Va. 173, 87 S. E. 78; Criner v. Geary, 78 W. Va. 476, 89 S. E. 149. It follows that the widow took one-half of the estate absolutely, that she had the right as executrix and guardian of her daughter to the custody and control of the other half, both corpus and income, on the trust to apply the income for the benefit of her daughter Helen until her death, and after that event on the trust to take the income of that half for herself, and to safely keep the corpus for the remaindermen entitled to receive it at her death.

The other important action of the District Judge was the appointment of a receiver of securities in the hands of the executrix of the value of $115,000. We consider first to what extent the decree of May 13, 1924, entered upon the default of the defendant, is reviewable on appeal. In Ohio, etc., R. R. v. Central Trust Co., 133 U. S. 83, 91, 10 S. Ct. 235, 237, 33 L. Ed. 561, the court said as to the proceedings under the bill after default:

“If the' allegations are distinct and positive, they may be taken as true without proof; but if they are indefinite, or the demand of the complainant is in its- nature uncertain, the requisite certainty must be afforded by proof.- But in either event, although the defendant may not be allowed, on appeal, to question the want of testimony or the insufficiency or amount of the evidence, he is not precluded from contesting the sufficiency of the bill, or from insisting that the averments contained in it do not justify the decree.”

The same rule is laid down in Thomson v. Wooster, 114 U. S. 104, 114, 5 S. Ct. 788, 29 L. Ed. 105, and in Winters v. United States, 207 U. S. 564, 575, 28 S. Ct. 207, 52 L. Ed. 340. We are therefore required to decide whether the facts set out in the bill, taken as true, justify breaking into the trust which the testator reposed in the defendant by the appointment of a receiver.

There is no averment of insolvency; on the contrary, it - appears from the bill that one-half of the estate, which is alleged to be worth more than $350,000, belongs absolutely to the executrix. The utmost inference that could be drawn against the executrix from the charges is that she had made serious mistakés in her accounts, resulting in confusion, that she has mistaken her right in selling securities, and that she is unable to straighten out her accounts, so as to show the plaintiffs the amount of the trust fund. The accounting ordered before a master, to rectify the accounts and ascertain the trust fund in the hands of the executrix, is a sufficient remedy for these conditions. The ample solvency of the executrix and her ability to respond to any order of the court concerning the trust fund prevent any apprehension of the danger of loss of any part of it. -The plaintiffs themselves affirmatively proved by the correspondence the desire of the executrix to make a proper accounting, and her offer of all of her books and accounts for the scrutiny of plaintiffs’ counsel, to the end that he might aid in correcting mistakes.

Defendant’s husband, whose chief solicitude was manifestly for his wife and daughter, placed his entire estate in her hands without security. He reposed in her, as he had the right to do, the confidence and trust of holding and managing one-half of the estate, in which she had only a life interest until her depth. Under these circumstances, the trust fund will not be taken from her under a bill which alleges nothing more than mistakes in management, without any showing of peril to the remaindermen under the trust. Appointment of a receiver of an estate intrusted by testator to an executor or trustee is a very strong measure, and will be made only when it clearly appears necessary to protect and preserve the trust property. There should be clear proof of misconduct or fraud, and danger of loss. Wise v. Hinegardner (W. Va.) 125 S. E. 579; 23 R. C. L. 28; 34 Cyc. 63; note, 72 Am. St. Rep. 63. We think, therefore, that the bill did not make a case for the appointment of a receiver, and the decree in this respect must be modified. The modification of the decree of the District Judge, however, is without prejudice to the right to plaintiffs to apply for the appointment of a receiver, and to the power of the District Judge to make the appointment, if at any time in the progress of the ease the receivership should be necessary for the preservation of the estate in remainder.

Modified.


source: Caselaw Access Project

author: WADDILL, Circuit Judge.

license: Public Domain

text:
    THE LIBERATOR. GRAYS HARBOR STEVEDORE CO. v. UNITED STATES.
    (Circuit Court of Appeals, Fourth Circuit.
    April 14, 1925.)
    No. 2314.
    Maritime liens <@=»30 — Neither United States nor its vessel held liable for services of stevedores rendered without exercise of due diligence to ascertain true ownership.
    Neither the United States nor ship owned and registered in its name at home port, designated on stern of ship, were liable in action, under Suits in Admiralty Act, March 9, 1920 (Comp. St. Ann. Supp. 1923, §§ 1251 %-v 125114Z), for services of stevedores rendered while ship was in possession of corporation to which the government had contracted to sell it, without inquiry as to ownership of vessel either from those in charge of vessel or at her home port, under Act June 23, 1910, as re-enacted in Merchant Marine Act June 5, 1920, § 30, subsecs. P, Q, R, S, T (Comp. St. Ann. Supp. 1923, §§ 8146%ooo-8146%q), since in such case services were rendered without exercise of reasonable diligence to ascertain true ownership of vessel.
    Appeal from the District Court of the United States for the District of Maryland at Baltimore; Morris A. Soper, Judge.
    Libel by the Grays Harbor Stevedore Company against the United States, owner of the steamship Liberator. Decree of dismissal (298 F. 159), and libelant appeals.
    Affirmed.
    Theodore B. Bruener, of Aberdeen, Wash., and Robert W. Williams and Janney, Ober, Slingluff & Williams, all of Baltimore, Md., for appellant.
    F. R. Conway, Admiralty Atty., U. S. Shipping Board, of Washington, D. C. (A. W. W. Woodcock, U. S. Atty., of Baltimore, Md., on the brief), for the United States.
    Before WOODS and WADDILL, Circuit Judges, and McDOWELL, District Judge.
   WADDILL, Circuit Judge.

This is an appeal from a decree of the United States District Court for the District of Maryland, dismissing the libel filed herein.

The libelant, the Grays Harbor Stevedore Company, a corporation of the state of Washington, having its place of business at Aberdeen, in the port of Grays Harbor in that state, filed its libel against the government under the Suits in Admiralty Act March 9, 1920, 41 St. L. 525 (Comp. St. Ann. Supp. 1923, §§ 1251(4-1251(41), to recover $4,664.22, the amount of its bill for services and expenses incurred and advances made in connection therewith for stevedoring the steamship Liberator, a vessel belonging to the United States, and theretofore contracted to be sold by it to the Atlantic, Gulf & Pacific Steamship Corporation, a company chartered by the laws of the state of Maryland, having its main office in the city of Baltimore, Md., and its Pacific Coast office at San Francisco, Cal.

At the time of the rendition of the service, the Liberator was in the possession of and being operated by the Atlantic, Gulf & Pacific Steamship Corporation, pursuant to the contract of sale and purchase aforesaid. There is no dispute as to the service having been rendered, nor as to the reasonableness of the charge, nor that a maritime lien may ordinarily be obtained for stevedoring services. The claim, however,' is made that no liability or lien exists against the ship because of the failure of the libelant to exercise the reasonable degree' of diligence required to ascertain whether the person ordering the work had authority to do so on behalf of the vessel; and it'is further insisted that the Atlantic, Gulf & Pacific Steamship Corporation, the purchaser of the steamship, and who was engaged in its operation, and by whom the service was ordered, had no such authority, and it is alone responsible for the claim asserted.

Briefly, the facts are these: The Atlantic, Gulf & Pacific Steamship Corporation was in possession under contract of purchase with the United States, represented by the United States Shipping Board Emergency Fleet Corporation and the United States Shipping Board, of six ocean-going vessels, of which the Liberator was one, engaged in the Pacific trade. The company, through its Pacific Coast office, in the month of January or February, 1922, had a general contract or understanding with the libelant for the stevedoring its ships at Grays Harbor. On the 22d of June, 1922, the Liberator entered the port of Grays Harbor to’ take' on a cargo of lumber, and the company, acting through its port captain, in pursuance of the general understanding aforesaid, notified the libelant of the arrival of the vessel, and the latter promptly loaded the same. At the completion of the service, a bill therefor was rendered as usual, and in accordance with what had been the custom, through the company’s branch office at San Francisco, but the same was not paid as theretofore, and it still remains unsettled for.

The libelant, it seems, kept its account against each ship, its agents and owners, and in this service knew only the Atlantic, Gulf & Pacific Steamship Corporation, and its representatives, and took no steps to ascertain the rights of the government in the vessel, nor had it knowledge that any such rights existed. The ship flew the house-flag of the Atlantic, Gulf & Pacific Steamship Corporation, and the libelant’s representative understood from that company’s agent that that company was the owner of the vessel. The ship was registered in the name of the United States at San Francisco, as its home port, and the home port of the vessel was appropriately placed upon the stem of the vessel according to law. Libelant made no inquiry whatever as to the ownership of the» vessel, either from those in charge of her, or at her home port (Act June 23, 1910, 36 St. L. 604, Comp. Stat. §§ 7783-7787 as reenacted in the Merchant Marine Act of June 5, 1920, 41 Stat. L. 988, § 30, subsecs. P, Q, R, S, and T [Comp. St. Ann. Supp. 1923, §§ 8146%ooo-8146}iq]); and the liability here turns solely upon whether or not, in the circumstances mentioned, it was required to exercise a greater degree of diligence than it did.

While there was much to warrant libelant in the belief, having regard to its previous transactions with the several vessels of the Atlantic, Gulf & Pacific Steamship Corporation during the preceding seven months, that it was dealing alone with that company, and that its bill would be paid as usual by that company, and that it actually did not know of the interest of the government in the ship, still the government was the owner of the vessel, and the Atlantic, Gulf & Pacific company merely an agreed purchaser in possession, and held the ship,according to the terms of the contract of purchase, and the government’s ownership could have been ascertained by inquiry at the home port of the vessel at San Francisco. That would at least have put libelant on inquiry as to whom the ship belonged, as well as to the authority of those operating it; and it seems manifest from an examination of libelant’s witness Hammond, general agent of the Atlantic, Gulf & Pacific Steamship Corporation at San Francisco, that while he had not detailed information of the conditions under which the ship had been held and operated, he knew or believed that they had not been paid for, and had probably been sold on the deferred payment plan. This would also have put libel-ant on inquiry, and admonished it that it could not with safety perform the service on the faith and credit of the ship, assuming Hammond would have given the information he now imparts.

This case is a close .one upon the facts, and one in which there was much justification in the libelant’s doing what it did, and proceeding upon the theory, in the light of its past connection with it, that the Atlantic, Gulf & Pacific Company was the sole owner of the ship. Nevertheless, we can but feel that the ease falls within the rulings heretofore made by this court in its previous decisions (Deibert Barge Building Co. v. United States [C. C. A.] 289 F. 805; Standard Oil Co. v. United States [C. C. A.] 1 F.[2d] 961; Frey & Son, Inc., v. United States [C. C. A.] 1 F.[2d] 963; Gill & Sons Forge & Machine Works v. United States [C. C. A.] IF.[2d] 964), as well ás of the decisions of the Supreme Court bearing incidentally on the subject. (United States v. Carver, 260 U. S. 482, 43 S. Ct. 181, 67 L. Ed. 361; Colonial Beach Co., Owner of the St. Johns, v. Quemahoming Coal Co., 260 U. S. 707, 43 S. Ct. 246, 67 L. Ed. 474; Piedmont, etc., Coal Co. v. Fisheries Co., 254 U. S. 1, 11, 41 S. Ct. 1, 65 L. Ed. 97).

The libelant having failed to exercise the reasonable diligence required of it, indeed having in effect made no inquiry to ascertain the true ownership of the vessel to which the service was rendered, no recovery can be had for the same, nor the amount sued for, either against the ship or its owner, the United States of America.

The decision of the District Court will be affirmed.


author: McDOWELL, District Judge.

text:
    HOVERMALE v. UNITED STATES.
    (Circuit Court of Appeals, Fourth Circuit.
    April 14, 1925.)
    No. 2320.
    1. Intoxicating liquo'rs <§=yl3!) — Evidence that cider was possessed for nonbeverage purposes, but for making vinegar held properly excluded.
    Under an information charging defendant with having unlawfully in his possession intoxicating liquor, to wit, 425 gallons of cider containing more than one-half of one per cent, of alcohol by volume, exclusion of evidence offered by defendant that the cider was not possessed nor used for beverage purposes, but was made from apples grown by him and possessed for the purpose of making vinegar for home use exclusively, held not error; National Prohibition Act, tit. 2, § 29 (Comp. St. Ann. Supp. 1923, § Í0138%p), being inapplicable. .
    2. Intoxicating liquors New, vol. 8A Key-No. Series — Possession for any purpose .may be made a crime.
    It is, within the power of Congress to make the possession of intoxicating liquor a crime, though possessed for some purpose other than use as a beverage.
    3. Intoxicating liquors <@=222 — Information need not negative any matter of defense.
    Under National Prohibition Act, tit. 2, § 32 (Comp. St. Ann. Supp. 1923, § 10138%s), providing that it shall not be necessary in any information or indictment to include any negative averments but shall be sufficient to state that the act complained of was then and there prohibited and unlawful, an information which, with the additional circumstances nécessary to inform the defendant of the nature and cause of the accusation, charges him with having unlawfully possessed intoxicating liquor at a stated time and within the jurisdiction of the court, is sufficient.
    4. Indictment and information <@=202(5) — Information held sufficiently specific.
    An information held sufficiently specific after verdict, where no bill of particulars was asked for.
    5. Indictment and information <@=119 — Allegation in information that liquor was possessed “for beverage purposes” held surplusage.
    In an information charging the unlawful possession of intoxicating liquor, an allegation that it was possessed “for beverage purposes” held surplusage.
    6. Criminal law <@=170 — Allegation which is surplusage does not affect right to plead conviction in bar of second prosecution.
    The presence in an information of an allegation which is surplusage cannot affect the right of the defendant to plead a conviction thereunder in bar of a second prosecution for the same offense properly charged therein.
    In Error to the District Court of the United States for the Northern District of West Virginia, at Martinsburg; William E. Baker, Judge.
    Criminal prosecution by the United States against Ernest Hovermale. Judgment of conviction, and defendant brings error.
    Affirmed.
    Decatur H. Rodgers, E. L. Luttrell, and J. H. Zirkle, all of Martinsburg, W. Va., for plaintiff in error.
    T. A. Brown, U. S. Atty., and Russell L. Furbee, Asst. U. S. Atty., both of Parkersburg, W. Va.
    Before WOODS and WADDILL, Circuit Judges, and McDOWELL, District Judge.
   McDOWELL, District Judge.

On September 16, 1924, the district attorney filed by leave of court a verified information, which in part reads as follows:

“That Ernest Hovermale on or about the 14th day of December, 1923, and after the 16th day of January, 1920, at or near Berkeley Springs, in the county of Morgan, in the district aforesaid, and within the jurisdiction of this court, did unlawfully and knowingly possess for beverage purposes a large quantity of intoxicating liquor, to wit, four hundred twenty-five gallons cider, the same containing more than one-half of one per cent, of alcohol by volume, and being then and there fit for use for beverage purposes, a further description of the kind and quantity whereof is to the United States attorney unknown, contrary to the act of Congress passed on the 28th day of October, 1919, commonly known as the ‘National Prohibition Act/ and against the peace and dignity of the United States of America.”

The defendant, having made no objection of any kind to the information, and not having asked for a bill of particulars, pleaded not guilty.. Thereupon the government introduced evidence tending to prove everything alleged in the information except that the liquor had been possessed for beverage purposes, as to which allegation no evidence was offered.

“And thereupon the government rested its case and the defendant introduced evidence on his behalf that he was at the time of the search of his premises a farmer; that he had possession of the said eider which had been made out of apples grown by him.

“And thereupon the defendant offered to prove that said cider was not manufactured nor possessed for beverage purposes, but had been made and possessed for the purpose of making pure apple vinegar for home use exclusively; that it was never at any time used as a beverage nor intended by the defendant to be used as a beverage, to which the government by the district attorney objected, which objection was by the court sustained, to which ruling of the court in sustaining said objection the defendant excepted.”

The defendant also asked for an instruction, which was refused, as follows:

“The court instructs the jury that you cannot find the defendant Ernest Hovermale guilty under this information unless you and each of you believe from the evidence beyond a reasonable doubt that the cider found on the premises of the defendant on the 14th day of December, 1923, or a part thereof, was for beverage purposes.”

The same point was saved again because the charge in effect denied the validity of the defendant’s foregoing contention.

There is a provision in section 29, tit. 2, of the Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138%p), as follows:

“The penalties provided in this act against the manufacture of liquor without a permit shall not apply to a person for manufacturing nonintoxieating eider and fruit juices exclusively for use in his home, but such cider and fruit juices shall not he sold or delivered except to persons having permits, to manufacture vinegar.”

It will be observed that the exact language of the defendant’s offer of evidence, above quoted, is as follows:

“And thereupon the defendant offered to prove that said eider was * * * possessed for the purpose of making * 9 * vinegar for home use exclusively. * 9 * ”

The astute and zealous counsel for the defendant have made no contention that the foregoing clause in section 29 of the .act applies here, and we therefore have no doubt that the defendant’s offer was not intended to mean that the 425 gallons of cider were intended for use as vinegar in the defendant’s own home. The offer must therefore be read as meaning that the vinegar was intended for use in the homes of sundry persons. It follows that" the foregoing provision of section 29 has here no application, and need not be further considered.

Before'going further, it may be well to say that the existence of power in Congress to make the possession of intoxicating liquor a crime, although possessed for some purpose other than use as a beverage, has been settled. Purity Extract Co. v. Lyneh, 226 U. S. 192, 201, 33 S. Ct. 44, 57 L. Ed. 184; Jacob Ruppert v. Caffey, 251 U. S. 264, 299, 300, 40 S. Ct. 141, 64 L. Ed, 260; Everard’s Breweries v. Day, 265 U. S. 545, 559, 560, 561, 45 S. Ct. 628, 68 L. Ed. 1174.

We think it advisable to consider next the propriety of the trial court’s ruling on the motion in arrest of judgment. And we have here only to inquire if the information charges an offense and so identifies the offense as to escape the charge of insufficiency in view of the possibility of a second prosecution for the same act.

Section 32, tit. 2, of the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138%s), reads in part as follows:

“It shall not be necessary in any * * * information, or indictment * * 9 to include any defensive negative averments, but it shall be sufficient to state that the act complained of was then and there prohibited and unlawful. * 9 9 ”

We read the first clause as meaning that no matter of defense need be negatived. The expression “prohibited and unlawful” seems mere tautology, and equivalent to the use of the word unlawful. And if any effect is to be given to the foregoing provisions, it seems necessary to hold that an information or indictment which, with the additional circumstances necessary to inform the defendant of the nature and cause of the accusation, charges the defendant with having unlawfully possessedintoxieating liquor, at a stated time and within the jurisdiction of the court, is a valid and sufficient pleading. We see no necessity for a discussion of the power of Congress to so legislate. Nothing in the statute even remotely indicates an intent to authorize a procedure which denies the defendant his constitutional right to information of the nature and cause of the accusation, or to due process of law. As a question of pleading at least, the statute makes any possession of intoxicating liquor a crime, if alleged by the United States attorney or by a grand jury to have been an unlawful possession. Any fact which makes possession of intoxicating. liquor lawful is matter of defense. And we would clearly fail to give effect to the above-quoted provisions of the statute unless we hold that no matter of defense need he negatived, otherwise than by alleging that the possession was unlawful. For some purposes it may be sufficiently accurate to say that the .statute does not make the mere possession of intoxicating liquor a crime. But this admission in no wise conflicts with a belief that Congress has, subject to the right of every defendant to he informed of the nature and cause of the accusation, the power to ordain that the facts making possession lawful need not he negatived by name or description; nor does it conflict with a belief that Congress has exercised such power, as above stated. We must conclude therefore that the information here sufficiently alleges every necessary element QÍ an offense.

We have no reason whatever to believe that the government pleading failed to supply any information that the defendant needed or in truth desired in order to make his defense. He made no objection to the pleading until after verdict, and did not ask for a bill of particulars. In the language of the Supreme Court, in Durland v. U. S., 161 U. S. 306, 315, 16 S. Ct. 508, 512, 40 L. Ed. 709: “If defendant had desired further specification and identification, he could have secured it by demanding a bill of particulars. Rosen v. United States, 161 U. S. 29.” In Bartell v. U. S., 227 U. S. 427, 433, 33 S. Ct. 383, 384, 57 L. Ed. 583, it is said:

“As to the objection that the charge was so indefinite that the accused could not plead the record and conviction in bar of another prosecution, it is sufficient to say that in such cases it is the right of the accused to resort to parol testimony to show the subject-matter of the former conviction, and such practice is not infrequently necessary. United States v. Claflin, 13 Blatchf. 178, 25 Federal Cases, 433, No. 14,798; Dunbar v. United States, 156 U. S. 185; Tubbs v. United States, 105 F. 59. In the Dunbar Case it was stated that other proof beside the record might be required to identify the subject-matter of two indictments, and the rule was laid down as follows .(p. 191):

“ ‘The rule is that if the description brings the property, in respect to which the offense is charged, clearly within the scope of the statute creating the offense, and at the same time so identifies it as to enable the defendant to fully prepare his defense, it is sufficient/ ”

We must conclude that the information in the case at bar clearly measures up to the foregoing rule, and that the trial court properly overruled the motion in arrest of judgment. See Martin v. U. S. (C. C. A.) 299 F. 287, 288; Fisher v. U. S. (C. C. A. 4th Ct. October 29, 1924) 2 F.(2d) 843.

As has been indicated by the statement of facts, it has been earnestly contended by counsel for the defendant throughout the case that the unnecessary allegation in the information that the defendant possessed intoxicating liquor “for beverage purposes” is not surplusage. We here use the word “surplusage” as meaning an allegation which may be disregarded, which need not be proved by the pleader, and which consequently is not put in issue by the plea of not guilty. In this sense we regard the allegation in question as surplusage. Not only could it be wholly stricken out and leave the information sufficient, but the allegation is neither descriptive of the offense, nor is it descriptive of the identity of any thing or fact material to the charge. It is a mere statement of a motive for the commission of the offense.’ See 12 Standard Procedure, 482; 10 Ency. Pl. & Pr. 530; 31 Corpus Juris, 748; Heard Crim. Pl. 135-137; King v. Jones, 2 B. & Adol. 611.

Having stated the reason for holding that the expression “for beverage purposes” is surplusage, we can now, more conveniently than before, consider an argument to the effect that the information here does not sufficiently protect the defendant against another prosecution for the same act. The argument is thus stated:

“If this conviction is allowed to stand, then has this defendant, under the pleading in this ease, been convicted of having in his possession liquor for beverage purposes, for such is the charge in the information. If the government in the future should charge him with having possessed liquor for nonbever-age purposes without a permit so to do, and introduces the evidence that was before the court at this trial, the accused could not sustain by the record a plea of former conviction, and he would be twice placed in jeopardy for the same offense.”

We think that this argument not only overlooks the right of a defendant to introduce evidence dehors the technical “record” of the first trial, but that it is also fallacious in that it assumes that surplusage, in both the present pleading and in the possible future pleading, will be erroneously treated as descriptive. If in the future in another pleading founded on the same act it is alleged that the defendant possessed the liquor for uses other than as a beverage, such allegation will not be descriptive and will be surplusage. We must assume that the court, when the possible second prosecution is instituted, will refuse to find in surplusage a reason for overruling a plea of former conviction. We conclude therefore that the present pleading is not open to the foregoing objection.

As we find no error, of which the defendant can complain, the judgment below must be affirmed.


author: WOODS, Circuit Judge.

text:
    McGILL et al. v. COMMERCIAL UNION ASSUR. CO., LIMITED, OF LONDON, ENGLAND.
    (Circuit Court of Appeals, Fourth Circuit.
    April 14, 1925.)
    No. 2321.
    1. Pleading <§=>¡27(2) — Insurer’s answer.and cross-bill in action against two companies held in legal effect an admission of liability if other company was not liable.
    In action against two insurance companies, one company, by answer and cross-bill basing alleged consent of insured to surrender of its policies on agent’s statement that valid policy of other company bad been issued before the fire, held in legal effect to admit liability if other company was not liable.
    2. Appeal and error <§=79(2) — Decree of dismissal as to'one of two defendants held final appealable decree, in view of other defendant’s admission of liability if first defendant was not liable.
    In action against two insurance companies, in which one company’s answer and cross-bill in effect admitted that it was liable if second company was no't liable, decree dismissing bill as to second company held a final appealable decree.

      3. Insurance <@=»I36(I) — Insurer held not Ha-ble when policies not delivered and old policies not canceled until after loss.
    Where policies were to be issued on cancellation of policies in another company, and new policies were not delivered or required notice to cancel the old policies given, until after loss, insured’s waiver of notice, or express agreement with agent for the substitution, could not then make new policies binding.
    Appeal from the District Court of the United States for the Western District of South Carolina, at Greenville; Henry H. Watkins, Judge.
    Suit by John A. McGill and another against the Commercial Union Assurance Company, Limited, of London, England, and the Home Insurance Company of New York, in which the last-named defendant filed a cross-bill. Decree dismissing first-named defendant, and plaintiffs and last-named defendant appeal.
    Affirmed.
    Thomas C. Guthrie, of Charlotte, N. C. (Hood & Hood and Watkins & Prince, all of Anderson, S. C., and Charles W. Tifiett, of Charlotte, N. C., on the brief), for appellants.
    T. A. Hammond, of Atlanta, Ga. (Smith, Hammond & Smith, of Atlanta, Ga., and Haynsworth & Haynsworth, of Greenville, S. C., on the brief), for appellee.
    Before WOODS, WADDILL, and BOSE, Circuit Judges.'
   WOODS, Circuit Judge.

The bill makes substantially these allegations:

The plaintiff McGill was the owner of a dwelling and outbuildings and furniture in the dwelling, arid also grain and hay in the outbuildings, situated upon his farm near Anderson, S. C. At the time of the purchase of the land and buildings by McGill, the plaintiff McCully held a mortgage thereon to secure notes for about $24,000, and the conveyance to McGill was made subject to the incumbrance. McCully indorsed the notes and mortgage to the plaintiff the Bank of Anderson as collateral security for a loan of approximately the same amount as the notes.

On August 8, 1922, the defendant the Home Insurance- Company of New York, through its agent at Anderson, issued a policy of insurance to the plaintiff McGill insuring for $28,150 the dwelling and outbuildings and furniture against loss by fire. To this policy, numbered C-28, was attached as a part thereof a provision whereby any loss upon the buildings by fire "was payable to the mortgagee as his interest might appear. The policy was delivered to McCully, the xhortgagee, and by him delivered to his as-signee, the Bank of Anderson. On.the same date that this policy was issued, the Home Insurance Company issued through the same agent another fire insurance policy for $2,-500, insuring the hay and grain in the outbuildings. Both policies were for the term of one year, and provided that the company might cancel them upon five days’ notice to-the insured and ten days’ notice to the mortgagee.

On September 29, 1922, a fire occurred', which damaged the buildings covered by policy No. C-28 to the extent of $13,000 and. the furniture and other property insured under that policy to the extent of $4,000. The-damage to the hay and grain covered by policy No. 3555 was $790.95. On the morning-of September 30, 1922, the plaintiff McGill, went to the office of Johnson, the Home Insurance Company’s local agent, and notified, him of the fire and the damage resulting.

The agent told McGill that by instruction, of the Home Company he had canceled the-policies in the Home Company on September 27, 1922, several days before the fire and', had substituted for them a policy in the Commercial Union Assurance Company. On request of Johnson, the insurance agent, McGill" handed him policy No. 3555 covering the hay- and grain. As to policy No. C-28, McGillreferred the agent to the bank which heldi. it as mortgagee. The bank refused the request of the agent to surrender that policy.. The Home Company insists that its policies-were canceled before the fire and that the - plaintiffs must look to the Commercial Union Company for payment of their loss. The Commercial Union Company denies liability, averring that the policy issued in its name was invalid. The policy of the Commercial Union Company limits the time for-suit to a year after the fire. On these allegations, plaintiffs asked the court of equity to determine the rights- of the several' parties.

The answer and cross-bill of the Home Insurance Company is in general accord with-the bill. Its detailed statement of the circumstances of the alleged cancellation of its-polieies and the alleged substitution by Johnson of the policy of the Commercial Union: Company is in substance as follows:

A special agent of the' Home Company,. after inspection of the McGill property, om September 20, 1922, instructed Johnson, the-loeal agent, to cancel its policies. On September 27, 1922, one Lewis, a special agent, of the Commercial Union Company, inspected the property and instructed Johnson, who» was also its agent, to issue its policy for the same amount on the same property. Johnson wrote the policy in the Commercial Union as directed and sent a report, known as a daily report, of the policy in due course to the Commercial Union Company and entered it on the register of that company kept in his office. After the fire Johnson made known his action to McGill, who surrendered to him the Home policy on the hay and grain, and undertook to get the policy on the buildings and furniture from the bank and surrender it to the agent of the Home Company. Thus McGill is alleged to have ratified the cancellation of the policies of the Home Company and accepted as a substitute the policy of the Commercial Union Company. Shortly afterwards, McGill stated that the bank had refused to surrender the policy in the Home Company held by it as mortgagee. Johnson reported the fire to the Commercial Union Company on September 30, 1922, as a loss on its policy, and that company authorized an adjustment bureau to adjust the loss. The policy was listed by Johnson in his regular monthly report to the Commercial Union Company, and the premium was included in his settlement cheek. The Commercial Union made no denial of its liability until its representative some days after the fire ascertained that the bank had refused to surrender its policy in the Home Company. The Home Company pleads these facts as cancellation of its policies and release of it from liability, and the issue of the valid policy of the Commercial Union Company under which that company only is liable to the plaintiffs. It further avers that if the court should hold it liable to the Bank of Anderson, mortgagee, it is entitled to be subrogat-ed to the rights of McGill in any judgment he may recover against the Commercial Union Comp'any.

Without answering, the Commercial Union Company moved to dismiss the bill as to itself on these grounds: The plaintiffs have a plain and adequate remedy at law; there is no equity in the bill; there is a misjoin-der of the parties plaintiff and parties defendant; the allegations of the bill show a cause of action at law against the Home Company on its policies and no cause of action against the Commercial Union Company. The District Court sustained all these grounds and decreed that the bill be dismissed as to the Commercial Union Company.

The appellants are met here by the objection that the appeal must be dismissed - because there was no final decree of the District Court. By its answer and cross-bill the Home Company in legal effect admitted itself to be liable if the Commercial Union Company was not, for the alleged consent of McGill to surrender the Home policies, if given, was based on Johnson’s statement that the valid policy of the Commercial Union Company had been issued before the fire and stands or falls with that statement. There is no pretense that the bank ever agreed to waive its right to notice of cancellation or substitution of the Commercial Union Policy. It seems perfectly clear therefore that the decree dismissing the bill as to the Commercial Union Company on the ground that it had never issued a valid policy was also an adjudication that the Home Company had not canceled its policy and that it was liable. Thus under the pleadings the decree of the District Court adjudicated the only litigated issue in the ease and was a final decree. The ease falls clearly under Hill v. Chicago, etc., R. R., 140 U. S. 52, 11 S. Ct. 690, 35 L. Ed. 331, as distinguished from Bank of Rondout v. Smith, 156 U. S. 330, 15 S. Ct. 358, 39 L. Ed. 441. Any possible doubt that this was the effect of the decree of the District Court and that it was understood by the Home Company to find it liable to the plaintiffs is removed by the stipulation of that company filed here that the decree should be so treated, and a formal decree should be entered against it in favor of the plaintiffs for the amount claimed in the event that this court should sustain the decree of the District Court in favor of the Commercial Union Company. See Thomsen v. Cayser, 243 U. S. 66, 83, 37 S. Ct. 353, 61 L. Ed. 597, Ann. Cas. 1917D, 322. Under these circumstances the dismissal of the appeal for lack of finality of the decree of the District Court would be to prolong the litigation and subject the parties to useless expense and delay for the sake of a shadow.

The Home Company did not ask for a dismissal of the bill in the District Court; on the contrary, in that court and in this court it earnestly contended that the bill in equity was properly filed, that there was no mis-joinder of parties or causes of action, and that under the facts it was proper for the plaintiffs to bring both insurance companies into one suit and have the court determine which company was liable. We are relieved, however, of the duty of deciding this interesting question of pleading and practice because the Home Company has waived all questions of misjoinder and actively submitted itself to the jurisdiction of the court of equity. The question falls out of the case as to the defendant the Commercial Union Company, because we are of tbe opinion that on the merits neither the bill filed by the insured nor the answer and cross-bill of the Home Company, nor both taken together, state any cause of action against the Commercial Union Company.

The Home Company was liable to the insured at the time of the fire because notice of- cancellation of the policies required by the contract of insurance had not been given. Taking all of the allegations of the pleadings most strongly against the Commercial Union Company, they amount to nothing more than this: Its agent had been instructed to issue its policy on the property upon the cancellation of the Home Company’s policies. The Home Company’s policies had not been canceled at the date of the fire because the required notice to owner and mortgagee had not been given, nor had the policy of the Commercial Union Company been delivered and accepted in place of them. There was no intention of any of the parties that there should be double insurance. Evidently neither waiver by the insured in favor of the Home Company nor even an express agreement between the agent and the insured for cancellation of the Home Company’s policies and substitution of the Commercial Union policy after the fire could bind the latter company, because its policy was to be issued upon property in existence, and after the cancellation of the policies of the Home Company.

The decree of this court will be that the decree of the District Court be affirmed, and that the case be remanded to that court with instructions to enter judgment in favor of the plaintiffs against the Home Insurance Company for the amount claimed.

Affirmed.


text:
    CHAFIN v. UNITED STATES.
    (Circuit Court of Appeals, Fourth Circuit.
    April 17, 1925.)
    No. 2331.
    1. Judges <§=*51 (3) — Affidavits of bias and prejudice held sufficient.
    In prosecution of sheriff for conspiracy to violate National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138% et seq.), affidavits, imputing to presiding judge indecorous remarks indicative of a purpose to convict defendant-of illicit traffic in intoxicating liquors and condemning defendant as sheriff for failure to enforce prohibition laws, held sufficient under Judicial Code, § 21/ (Comp. St. § 978), requiring affidavits of bias and prejudice to state the facts and the reasons for the belief that such bias or prejudice exists.
    2. Judges <@=*51 (4) — Facts stated in affidavit of bias and prejudice acted upon as if true.
    Facts stated in affidavit of bias or prejudice, under Judicial Code, § 21 (Comp. St. § 978), must be acted upon as if'true and cannot be controverted.
    3. Judges <§=*51 (2) — Statute prescribing time for filing of affidavit of prejudice and bias construed.
    Under Judicial Code, § 21 (Comp. St. § 978), affidavit of bias or prejudice, where indictment is found less than 10 days before commencement of term, must be filed as soon as practicable before the term begins, or • where indictment is found after term has begun, as soon as disqualifying facts are known, or good cause shown for delay.
    4. Judges <§=*51 (2) — Refusal to allow defendant to file, on day of trial, affidavits of prejudice stating facts known to defendant for two weeks, held not error.
    Refusal to allow defendant, on day of trial, to file affidavits of prejudice stating facts of which the defendant had had knowledge for two weeks before day of trial, held not error under Judicial Code, § 21 (Comp. St. § 978).
    5. Judges <§=*51 (2) — Challenge for prejudice must be made at first opportunity after discovery of facts, in absence of statute.
    In the absence of a statute, a challenge to a judge for bias and prejudice must be made at the first opportunity after discovery of facts tending to prove disqualification.
    6. Criminal law <§=*279 — Plea in abatement attacking legality of grand jury, not filed until day of trial, held properly overruled1.
    Plea in abatement on ground that indictment had been found by illegally constituted grand jury under Judicial Code, § 282 (Comp. St. § 1259), not filed until day of trial, held properly overruled, in absence of allegations excusing failure to make earlier objection.
    7. Criminal law <§=>280(2) — Plea in abatement, attacking legality of grand jury, held defec-tice for failure to show how defendant was prejudiced.
    Plea in abatement, attacking legality of grand jury and stating that method of drawing grand jurors was prejudicial to defendant, held defective for failure to show how defendant was prejudiced.
    8. Criminal, law <§=>396(1) — Testimony as to statement made by defendant held not ren-dered competent by testimony for government as to different statement.
    In prosecution for conspiracy to violate the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138% et seq.), defendant’s statement tending to show that he was not connected with saloon was not made competent by testimony for the government that defendant had made a different statement tending to prove that he did have an interest.
    9. Criminal law <§=>345 — Evidence' as to establishment of place to sell liquor before enactment of prohibition act held admissible.
    In prosecution for conspiracy to violate the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138% et seq.), testimony as to establishment of place for sale of liquor by agreement between defendant and other person before enactment of Prohibition Act held admissible, in view of other evidence that the parties carried the agreement into effect and continued to operate the place after passage of act.
    10. Criminal law <§=>762(2) — Court’s expression of opinion as to weight of testimony held not error.
    Court’s comment on testimony, in which he expressed opinion that officers who had violated their official oaths were entitled to little credit as witnesses, held not error, in view of explicit and repeated charge that jurors were not bound by court’s opinion and should put their own estimate on testimony.
    In Error to the District Court of the United States for the Southern District of West Virginia, at Huntington.
    Don Chafin was convicted of conspiracy to violate the National Prohibition Act, and he brings error.
    Affirmed.
    E. C. Leftwich and John H. Holt, both of Huntington, W. Va. (John S. Marcum and Holt, Duncan & Holt, all of Huntington, W. Va., on the brief), for plaintiff in error.
    Elliott Northcott, U. S. Atty., of Huntington, W. Va., Mabel Walker Willebrandt, Asst. Atty. Gen., and B. J. Pettigrew, Asst. U. S. Atty., of Charleston, W. Va. (Lawrence L. McClure, Asst. U. S. Atty., of Huntington, W. Va., on the brief), for the United States.
    Before WOODS and WADDILL, Circuit Judges, and McDOWELL, District Judge.
   WOODS, Circuit Judge.

The defendant, Don Chafin, was convicted on the charge of conspiring with one Tennis Hatfield to violate the National Prohibition Act by making and carrying into effect an agreement to open and maintain a place for the sale of intoxicating liquors at Barnabus, Logan county, W. Va.

Belying on section 21 of the Judicial Code (Comp. St. § 988), the defendant imputes error to the District Judge of the Southern District of West Virginia in refusing to allow .affidavits imputing to him prejudice and bias to be filed, and in proceeding with the trial after the presentation of the affidavits. The section invoked reads:

“Whenever a party to any action or proceeding, civil or criminal, shall make and file an affidavit that the judge before whom the action or proceeding is-to be tried or heard has a personal bias or prejudice either against him or in favor of any opposite party to the suit, such judge shall proceed no further therein, but another judge shall be designated in the manner prescribed in the section last preceding, or chosen in the manner prescribed in section 23, to hear such matter. Every such affidavit shall state the facts and the reasons for the belief that such bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term of the court, or good cause shall be shown for the failure to file it within such time. No party shall be entitled in any ease to file more than one such affidavit; and no such affidavit shall be filed unless accompanied by a certificate of counsel of record that such affidavit and application are made in good faith. * * * ”

This is the only federal statute relating to the disqualification of a judge for bias or prejudice, and it was evidently intended to cover the whole subject of relief for litigants from the disadvantage of having their causes tried by judges alleged to be prejudiced or biased. The obvious reason for requiring a party to file the affidavit ten days before the beginning of the term was to protect the other party from useless labor and expense of preparation for trial, to protect the public from sudden disarrangement of the court’s business, and to prevent delay in the trial of causes.

The term of the court began on September 16, 1924. The indictment was returned September 19. The next day, September 20, defendant appeared and on his motion was admitted to bail for his appearance for trial on October 6. On the morning of that day the case was called for trial, and on request of defendant’s counsel was postponed until the afternoon. In the interval, the request of defendant’s counsel that the United States attorney consent to a continuance was refused. At the afternoon session defendant by his counsel tendered his own affidavit and affidavits of others averring prejudice and bias of the judge, which on the objection of the United States attorney the District Judge refused to receive or allow to be filed, on the ground that they had not been seasonably presented, and that the purpose of their pres-éntation was to obtain a continuance. In substance, the defendant’s affidavit and the supporting affidavits of other persons met the requirements of the statute that “the affidavit shall state the facts and reasons for the belief that such bias and prejudice exists.” The affidavit of Thomas B. Davis, made a part of defendant’s, imputes to Judge Mc-Clintie indecorous remarks made to Davis in March, 1924, indicative of a purpose to convict the defendant Chafin of illicit traffic in intoxicating liquors. There were other affidavits adopted by defendant, less important, relating to public speeches by Judge MeClintie condemning the defendant as sheriff of Logan county and other sheriffs for failing to enforce the prohibition laws.

No showing was presented that the statements of the District Judge alleged to have been made in September, 1923, and March, 1924, relied on as showing prejudice, were not known to the defendant on September 20, 1924, the date he was admitted to bail for his appearance for trial on October 6, nor was any other reason given for the delay in filing the affidavits. When the District Judge announced that he would exclude the affidavits because they were not filed in time, no attempt was made to show by affidavit that the facts were not known to the defendant at the time he appeared and gave bail. On the contrary, the affidavits themselves indicate that the defendant knew of the statements imputed to Judge MeClintie in September, 1923, and March, 1924, immediately after they were made. There is no escape from the conclusion that the defendant on September 20, 1924, knew everything alleged to show bias and prejudice of the presiding judge that he knew on October 6 following, and that he delayed presenting his affidavits for sixteen days.

The argument in his behalf is that since he was not indicted until after the September, 1924, term began, and so could not submit his affidavits as required by the statute ten days before the beginning of the term, no diligence in submitting them was required of him. The statute was intended as a privilege and a protection to persons accused of crime and other litigants. It conferred on every party to a cause the right to disqualify any judge on his mere ex parte affidavit of his version of the acts and words of a judge showing prejudice or bias. This does not, of course, mean that any such charge that a party .to 'a cause may choose to make against the judge is presumed to be true in fact. The statute did not contemplate such injustice as that to a judicial officer. But to the end that there should be no controversy or doubt as to the fairness of trials, the statute allows neither the judge, nor the public, nor any party to the cause to controvert anything the affidavit contains which if true would show bias or prejudice. The facts stated in'affidavit must be acted upon as if true. Berger v. United States, 255 U. S. 22, 41 S. Ct. 230, 65 L. Ed. 481.

But the statute was not intended to make this right and privilege of removing a judge from the bench unlimited and arbitrary. Its language and spirit require of the defendant, as the price of the privilege bestowed, such diligence in its use as will give the least inconvenience and expense to the opposing party and obstruct as little as possible the due course of the administration of justice. A statute can rarely provide in express terms for all possible contingencies. The Legislatures and the people must depend on the courts to give statutes such interpretation as will express their spirit and tenor, applying them when the case is clearly within the right to be protected or the mischief to be remedied.

The diligence in express terms required of filing the affidavit tén days before the term begins can. apply only when the indictment is found at least ten days before the term begins. Nothing is said in express language as to an indictment found within a less number of days before the term begins, or one found after the term begins. Nevertheless we think the true construction of the statute is that it requires the same measure of diligence under differing circumstances. This case itself illustrates the absurd results of a different construction. The case was important, requiring the presence of a number of witnesses and laborious preparation. The defendant, though in possession of all the facts relating to the alleged disqualifying language of Judge MeClintie, allowed the goverdment to go on with its preparations and the court to proceed for two weeks, giving no notice until the day of trial that any objection would be made. Thus he prevented the presence of another judge to preside at the trial.

Surely the statute does not mean that if a person is indicted ten days before the term at which his ease is to be called for trial begins he must use due diligence to file his affidavit of bias and prejudice of the .judge on the very day the indictment is found, but if he is indicted nine days before such term begins no diligence is required, and he may wait possibly several weeks until the ease is called for trial before filing his charges against the judge. We cite a few of the many cases holding that the construction of a statute leading to such absurd results will not be adopted. Church, etc., v. United States, 143 U. S. 457, 12 S. Ct. 511, 36 L. Ed. 226; Lau Ow Bew v. United States, 144 U. S. 47, 59, 12 S. Ct. 517, 36 L. Ed. 340; In re Chapman, 166 U. S. 661, 17 S. Ct. 677, 41 L. Ed. 1154; Williams v. U. S. Fidelity Co., 236 U. S. 549, 35 S. Ct. 289, 59 L. Ed. 713; Street v. Lincoln Safe Deposit Co. et al., 254 U. S. 88, 41 S. Ct. 31, 65 L. Ed. 151, 10 A. L. R. 1548; note, 5 A. L. R. 996.

The fair and reasonable construction of the statute is that.when the indictment is found ten days or more before the term begins at which the case is to be called for trial, the affidavit must be filed ten days before the beginning of the term or good cause shown for the delay; when the indictment is found less than ten days before such term begins, the affidavit must be filed as soon as practicable before the term begins or good cause shown for the delay; when the indictment is found after the term has begun, the affidavit must be filed as soon as the disqualifying facts are known or good cause shown for delay.

Thus construed, the statute affords a party full opportunity to prevent the trial of his case by a judge against whom he can state under oath facts showing bias or prejudice. At the same time it affords to the other party and to the public protection against unnecessary surprise, delay, and expense by requiring the objection to the regular judge to be made in time for another judge to be designated to try the cause.

Here the defendant, in deliberately and unfairly witholding his challenge of the judge until the day of trial, violated both the letter and spirit of the statute and can take no benefit under it. Shea v. United States (Sixth Circuit) 251 F. 433, 163 C. C. A. 451.

The result would be the same if it could be held that the statute covers criminal eases only when the indictment is found at least ten days before the beginning of the term. If there were no statutory requirements, the just and reasonable rule would be that a challenge to a judge for bias and prejudice must be made at the first opportunity after discovery of the facts tending to prove disqualification. Agnew v. United States, 165 U. S. 36, 17 S. Ct. 235, 41 L. Ed. 624; Hyde v. U. S., 225 U. S. 347, 32 S. Ct. 793, 56 L. Ed. 1114, Ann. Cas. 1914A, 614. This is merely requiring of a party the performance of a plain duty tt> the other litigant and to the public. To hold otherwise would be to allow a litigant to pervert and abuse the right extended to him at the cost to the other party of unnecessary expense and labor and to the public of the unnecessary disruption of the conduct of the courts.

By pleas in abatement the defendant on the day of trial contended the indictment had been found by an illegally constituted grand jury. Twenty-three grand jurors were legally drawn for the term. When only seventeen appeared the court ordered the marshal to summon five additional persons as grand jurors. These five persons were not drawn from the jury box but were summoned by the marshal from the bystanders. The defendant says that since seventeen grand jurors were present the court had no authority to summon others, and that even if less than sixteen had appeared the persons neeessary to complete the grand jury could be drawn and summoned only from the jury box and not from the bystanders. To support this position counsel for defendant relied on section 282 of the Judicial Code (Comp. St. § 1259):

“Every grand jury impaneled before any District Court shall consist of not less than sixteen nor more than twenty-three persons. If of the persons summoned less than sixteen attend, they shall be placed on the grand jury, and the court shall order the marshal to summon, either immediately or for a day fixed, from the body of the district, and not from the bystanders, a sufficient number of persons to complete the grand jury. * *

These pleas are disposed of by this language of the Supreme Court in overruling similar pleas based on illegality of the grand jury:

“The original venire was issued November 18; the second venire issued December 2, 1895. The court opened December 3, 1895, and the indictment was returned December 12, yet defendant did not file his plea in abatement until December 17. The plea does not allege want of knowledge of threatened prosecution on the part of defendant, nor want of opportunity to present his objection earlier, nor assign any ground why exception was -not taken or objection made before; and, moreover, the plea is fatally defective in that, although it is stated that the drawing ‘tended to his injury and prejudice/ no grounds whatever are assigned for such a conclusion, nor does the record exhibit any such.” Agnew v. United States, 165 U. S. 36, 45, 17 S. Ct. 235, 41 L. Ed. 624; Hyde v. United States, 225 U. S. 347, 32 S. Ct. 793, 56 L. Ed. 1114, Ann. Cas. 1914A, 614.

The evidence of a witness that the defendant had made a statement to him tending to show that he was not connected with the Blue Goose saloon, in which it was alleged defendant was interested with Hatfield, was not made competent by the fact that a witness for the government had testified that about the same time and place the defendant had made a different statement to him tending to prove that he did have an interest.

The declarations of the government witness Hatfield could not be proved except as a contradiction after laying tbe proper foundation therefor.

Objection was made to evidence of the establishment of a place for the sale of liquor by agreement between defendant and Hatfield before the enactment of the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138]4 et seq.). This evidence was clearly competent when followed by other evidence that the parties carried the agreement into effect and continued to operate under it after the passage of the National Prohibition Act. Standard Oil Co. v. United States, 221 U. S. 1, 76, 31 S. Ct. 502, 55 L. Ed. 619, 34 L. R. A. (N. S.) 834, Ann. Cas. 1912D, 734; Heike v. United States, 227 U. S. 131, 145, 33 S. Ct. 226, 57 L. Ed. 450, Ann. Cas. 1914C, 128.

Commenting on the testimony of some of defendant’s witnesses, in his charge the District Judge expressed his own opinion that the testimony of witnesses, who as officers had 'violated their oaths to enforce the laws of the state and nation, were entitled to little credit as witnesses, but he explicitly and repeatedly told the jury they were not bound by his opinion and should put their own estimate on the testimony of these and other witnesses.

The District Judge likewise commented upon the nature of the testimony against the reputation of Hatfield, the chief witness for the government. But in this connection, also, both generally and specifically, he told the jury that the weight to be given to that testimony was for them.

In this instance the charge did not go beyond lawful expressions of the judge’s own views with the clear direction to the jury to be guided by their own estimate of every witness and of the entire evidence. Simmons v. United States, 142 U. S. 148, 155, 12 S. Ct. 171, 35 L. Ed. 968; Horning v. District of Columbia, 254 U. S. 135, 138, 41 S. Ct. 53, 65 L. Ed. 185.

Affirmed.


author: ANDERSON, Circuit Judge.

text:
    UNITED STATES v. DORTO.
    (Circuit Court of Appeals, First Circuit.
    May 12, 1925.)
    No. 1808.
    I. Marriage <@=520(2) — Requisites of “marriage per verba de presentí” stated.
    To constitute a “marriage per verba de pre-sentí,” the parties must agree to become-bus-band and wife presently, and the consent which is the foundation and, essence of the contract must be mutual and given at the same time, and must not be attended by an agreement that some intervening thing shall be done before the marriage takes effect, or that it be publiqjy solemnized.
    2. Aliens <@=546 — Citizens <@=»7 — Marriage <@=> 20(2) — Facts held to- establish common-law marriage, rendering the wife a citizen and not subject to deportation.
    Where alien woman and citizen agreed to marry, and began to live' together as wife and husband, and the woman was introduced by the citizen to his friends as his wife, before the Cable Act (Comp. St. Ann. Supp. 1923, § 4358a et seq.) took effect, there was a valid common-law marriage by which the wife became an American citizen,- precluding deportation of wife under such act after it took effect, though her primary desire in getting married was to avoid deportation, and though their ceremonial marriage was celebrated after act took effect.
    Appeal from tbe District Court of tbe United States for tbe District of Rhode Island; -Arthur L. Brown, Judge.
    Petition for writ of habeas corpus by Em-ilie Carlevale Dorto against tbe United States. Writ granted by District Court (300 P. 568), and the United States appeals.
    Affirmed.
    Harold A. Andrews, Asst. U. S. Atty., of Providence, R. I. (Norman S. Casé, U. S. Atty., of Providence, R. I., on the brief), for the United States.
    George P. O’Shaunessy and Peter Leo Cannon, both of Providence, R. I. (Peter C. Cannon, of Providence, R. I., on the brief), for appellee.
    Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.
   ANDERSON, Circuit Judge.

The agreed facts in this habeas corpus case show that the petitioner landed in New York on June 14, 1922, and was excluded because the Italian quota was full. She then instituted ha-beas corpus proceedings, which were dismissed. On appeal, she was bailed. Her appeal was dismissed April 25, 1923. Meantime, when free on bail she went to Providence, R. I., and there met Dorto, now her husband. Her present petition, filed on June 16, 1924, goes on the ground that there was a common-law marriage before the 'Cable Act (42 Stat. 1021 [Comp. St. Ann. Supp. 1923, § 4358a et seq.]) took effect on September 22, 1922. The agreed facts show that she had been advised by her New York attorneys that, if she could marry an American citizen, she could avoid deportation. She met Dorto about August 1, 1922, and told him her situation. He agreed to marry her. Two or three days after, they began to live together as man and wife at Dorto’s tenement. Witnesses testified that, during August, Dorto introduced her as his wife. The record shows that there was mutual love between them, and that at the time of the trial in June, 1924, she was expecting a child soon to be born of the marriage.

It also appears that on September 9, 1922, they applied to a magistrate in Attleboro, Mass., for a license to márry, and were told that they must wait two weeks. This resulted in a ceremonial marriage at Attleboro on September 23, one day after the Cable Act took effect. The pertinent parts of this act are as follows:

“See. 2. That any woman who marries a citizen of the United States after the passage of this act, or any woman whose husband is naturalized after the passage of this act, shall not become a citizen of the United States by reason of such marriage or naturalization; but, if eligible to citizenship, she may be naturalized upon full and complete compliance with all requirements of the naturalization laws, with the following exceptions :
“(a) No declaration of intention shall be required.
“(b) In lieu of the five-year period of residence within the United States and the one-year period of residence within the state or territory where the naturalization court is held, she shall have resided continuously in the United States, Hawaii, Alaska, or Porto Rico for at least one year immediately preceding the filing of the petition. * 51 *
“See. 6. That section 1994 of the Revised Statutes and section 4 of the Expatriation Act of 1907 are repealed. * * * ”

The court below, without a flat finding as to the validity of the common-law marriage, in a learned and interesting opinion, sustained the writ, on the ground that the Cable Act “establishes a new class of aliens, the alien wives of American citizens,” and that the Immigration Act of 1917 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 428914a et seq.) does not authorize the deportation of such aliens, unless falling within the sexually immoral class. See section 19 (section 428914]j)- There is no contention that this petitioner does fall within that class.

The government contends that the court below erred in sustaining the writ on a. ground not set up in the petition. We find it unnecessary to consider this aspect of the case. Eor we are of the opinion that the writ must be sustained on the ground alleged, viz. that the petitioner became an American citizen by virtue of a valid marriage to an American citizen before the Cable Act took effect.

Common-law marriages are generally held valid; they have never been held invalid in Rhode Island. The implications of the pertinent decisions are in favor of their validity Williams v Herrick, 21 R. 1. 401, 43 A. 1036, 79 Am. St. Rep. 809; Peck v. Peek, 12 R. I. 485, 34 Am. Rep. 702. The requisites of such common-law marriages are, as stated in Odd Fellows’ Beneficial Association v. Carpenter et al., 17 R. I. 720, 24 A. 578, as follows:

• “In order to constitute a marriage per ver-ba de presentí, the parties must agree to become husband and wife presently. The consent which is the foundation and essence of the contract must be mutual and given at the same time, and it must not be attended by an agreement that some intervening thing shall be done before the marriage takes effect, or that it be publicly solemnized. That is to say, it must contemplate a present assumption of the marriage status, in distinction from a mere future union.”

The agreed facts bring this case completely within this rule. Unusual significance attaches to the,facts: (1) As to the agreement to marry; (2) to the assumption of the marriage relation; and (3) to the holding forth to acquaintances by Dorto of the petitioner as his wife — from the fact that her primary and initial desire was for the legal status of marriage as a bar to deportation proceedings. The ease is thus sharply distinguished from the not infrequent case of parties entering into illicit relations, or in which the evidence shows there was a mere executory agreement for a marriage. This petitioner wanted, in August, 1922, the legal status of a married woman, so that she might avoid deportation. Dorto knew that and agreed to marry her so as to give her then and there this desired status. Under such circumstances, the fact that there was, a little later, a ceremonial marriage, has little or no tendency to control the natural inference that from the beginning immediate marriage, and not illicit relations, or future marriage, was the purpose of both parties. That love, mutual attraction, and a child have resulted from a union thus primarily motived are fortunate results.

We find no ease in which, on facts like those now before the court, a common-law marriage has not been held valid. See 26 Cyc. 836 et seq., notes and cases; Love v. Love, 42 Okl. 478, 142 P. 305, L. R. A. 1915E, 109, notes and cases.

The decree of the District Court is affirmed.