ing sustaining the objection to the question, there are two reasons why it is of no avail to plaintiff in error. The first of these is, that the question called for a conclusion, as stated in the objection, and not for a fact. The second is, that the question was answered, as is shown by what immediately followed the proceedings just quoted. The following part is:

"A. I can give you my opinion. Your question necessarily calls for a conclusion.

"Q. Give us your conclusion, or opinion, as you call it. A. It was my opinion that he

was not."

It is clear that the evidence sought by the question to which objection was sustained was fully given thereafter and remained in the record. Therefore, no prejudice could have resulted from the ruling on the question.

The judgment must be and is affirmed.

Gerald FitzGerald, of Clarksdale, Miss. (Maynard, FitzGerald & Venable, of Clarksdale, Miss., and Osborn & Witty, of Greenwood, Miss., on the brief), for petitioner.

J. L. Roberson, of Clarksdale, Miss. (J. L. Roberson and Roberson, Yerger & Cook, all of Clarksdale, Miss., on the brief), for respondents.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

WALKER, Circuit Judge. The Sommers Hardware Company, a corporation which was engaged in the retail hardware business in Clarksdale, Miss., was adjudged bankrupt on December 19, 1925, on an involuntary petition filed on that date. Under an order made by the referee, the bankrupt's fixtures and stock of goods were sold. The petitioner, which recovered a money judgment against the bankrupt on February 18, 1925, and had that judgment enrolled more than four months prior to the filing of the bankruptcy petition, asserted the claim that it was

et al.

(Circuit Court of Appeals, Fifth Circuit. December 9, 1926.)

1. Bankruptcy

No. 4841.

345-Judgment staying execution, held not entitled to priority after bankruptcy of judgment debtor (Bankruptcy Act, § 47a [U. S. Comp. St. § 9631]; Hemingway's Code Miss. § 607).

Under Bankruptcy Act, § 47a (U. S. Comp. St. § 9631), a judgment creditor, who refrained from issuing execution in hope that judgment debtor might pay out, held not entitled to priority after bankruptcy of judgment debtor, in view of Hemingway's Code Miss. § 607.

2. Judgment 784-Senior judgment creditor, staying execution pursuant to agreement until lien of execution under subsequent judgment attaches loses priority (Hemingway's Code Miss., 607).

Under Hemingway's Code, Miss., § 607, holder of enrolled judgment loses his priority in favor of subsequent judgment creditor by agreeing to stay execution and acting in pursuance of such agreement until lien of execution under subsequent judgment attaches.

Petition to Superintend and Revise Order of the District Court of the United States for the Northern District of Mississippi; Edwin R. Holmes, Judge.

In the matter of the bankruptcy of the Sommers Hardware Company, Inc.; E. B. Phillips, trustee. On petition of the Winchester-Simmons Company to superintend and revise an order of the District Court denying priority to its claim. Petition denied.

judgment out of the proceeds of the sale of the bankrupt's stock of goods. That claim was disallowed.

[1] The following is shown by an agreed statement of facts: No execution was issued on the judgment in favor of the petitioner. Several months prior to the date of the filing of the bankruptcy petition, the petitioner, upon being informed by the bankrupt that it could in time pay all its debts, but that the issue of executions against it would result in the closing of its store, the destruction of its credit and bankruptcy, agreed with the bankrupt not to issue executions, and to give the bankrupt a chance to work out and pay its debts, and the bankrupt agreed to pay as it could, and to prorate its payments among the different judgment creditors, the agreement not calling for the withholding of executions for any given time, but for holding up issuance of writs so long as satisfactory payments were made on the judgment. After that agreement was made, the bankrupt, with the knowledge of the petitioner, continued to conduct its retail business as usual, and during four months prior to bankruptcy bought merchandise, which went into its stock, in the amount of $11,991.62, and sold goods from its stock for the sum of $18,815.14.

[2] It is settled by Mississippi decisions that the priority given by the statute of that state to the holder of an enrolled judgment (Hemingway's Mississippi Code, § 607) is lost in favor of a subsequent judgment creditor by

such holder agreeing to stay execution on his judgment and acting in pursuance of such agreement until the lien of an execution under the subsequent judgment attaches. Michie v. Planters' Bank, 4 How. (Miss.) 130, 34 Am. Dec. 112; Foute v. Campbell, 7 How. (Miss.) 377; Talbert v. Melton, 9 Smedes & M. 9.

Those decisions are in harmony with decisions in other jurisdictions to the effect that such an agreed withholding of an execution is a perversion of the writ, which is intended to enable the creditor to collect his debt, but not to enable him to shield the debtor's property from seizure by other creditors. 23 Corpus Juris, 513. As to the bankrupt's stock of merchandise, the position of the petitioner is similar to what it would have been if, instead of being the holder of an enrolled judgment, execution on which it agreed to stay, it had taken, as security for its debt, a mortgage of the bankrupt of its stock of merchandise which permitted the bankrupt to remain in possession of the mortgaged stock and make sales therefrom without applying the proceeds on the mortgage debt. As against other creditors of the bankrupt such a mortgage would have been invalid. Johnston v. Tuttle Bros., 65 Miss. 492, 4 So. 553; Bank v. Goodbar, 73 Miss. 566, 19 So. 204. Under section 47a of the Bankruptcy Act (Comp. St. § 9631) the trustee takes the status of a judgment creditor holding an unsatisfied execution as of the time the petition in bankruptcy was filed. Such a lien is superior to that of a senior judgment creditor, who, under such an agreement as the abovementioned one, stayed execution on his judgment until the bankruptcy petition was filed. It follows that it was not error to rule against the petitioner's asserted claim of priority. The petition is denied.

Libel by the Universal Steamship Company against the American Steamship Company, as owner of the Steamer Louis R. Davidson, in which respondent impleaded certain tugs. From a decree dismissing the libel the Universal Steamship Company appeals. Affirmed.

Thomas H. Garry, of Cleveland, Ohio, for appellant.

Harney B. Stover, of Milwaukee, Wis., for appellees Meyer and others.

Lawrence E. Coffey, of Buffalo, N. Y., for appellee American S. S. Co.

Before ALSCHULER, EVANS, and ANDERSON, Circuit Judges.

In

ANDERSON, Circuit Judge. While the steamer Spokane, owned by appellant, was lying moored to a dock in the Milwaukee river, the steamer Davidson was towed, stern first, through the river by two tugs, the Meyers, hitched stern to stern, and the Simpson, hitched bow to bow to the Davidson. passing, the Davidson swung round and struck the Spokane, doing some damage. The appellant filed a libel against the Davidson for damages for the collision. The owner of the Davidson answered, admitting the collision, but denying responsibility therefor, alleging that she was in charge of the tugs when the accident happened, and by petition brought in the tugs under rule 56. The owner of the Davidson also filed its libel against the tugs, to recover damages sustained by it.

In appellant's libel it was alleged that those in charge of the Davidson's navigation were incompetent and reckless; that she did not have and maintain a sufficient and effi

CO. et al.

(Circuit Court of Appeals, Seventh Circuit. December 11, 1926.)

No. 3790.

1. Admiralty 118-Conclusion of trial court, required to find facts, will not be disturbed, except in clear case.

In libel for damages from collision, conclusion of trial court, required to find facts, will not be set aside, except in clear case.

2. Admiralty 73-That court erroneously placed burden of proof of negligence of tugs

on vessel with which tow collided held not established.

Court held not shown to have erroneously placed burden of proof of negligence of tugs

any means to avoid collision, and was navigated in such manner that she was permitted to collide with the Spokane, properly moored at her dock.

The owner of the Davidson in its libel charged that the tugs were at fault, in that their masters and crews were incompetent and inattentive to their duties, that neither tug maintained a proper lookout, and that, after each should have observed that a squall was approaching, they continued ahead with the Davidson, knowing that the tug at her bow did not have sufficient power to hold her against a strong wind.

The owners of the tugs answered, denying

2. Costs 260 (4)-There being no merit in assignments, and no personal appearance on hearing, writ will be treated for delay, and damages awarded (Circuit Court of Appeals rule 30; Comp. St. § 1671).

Assignments of error being wholly frivolous and without merit, and there being no per

[1] The evidence fully covered the physical surroundings, the situation at the time of the collision, the conduct of the persons in charge of the moving vessels, the approach of the storm, and the suddenness with which the wind veered round from the opposite direction and burst upon the Davidson, driving her against the Spokane. The trial court was called upon to determine what the facts were, who, if any one, was responsible for the collision, and only in a clear case would we be justified in setting its conclusions aside. There was sufficient evidence to warrant the holding that faulty or incompetent seamanship, or negligence, or incompetency of those in charge of the movements of the vessels did not appear.

[2] It is urged that the court erred in ruling upon the burden of proof, the insistence being that, as the Spokane was moored at a dock (and thus asserted to be without fault), the burden was upon the tugs and the Davidson to show themselves free from fault. The court made no direct ruling upon this point. At the beginning of the trial, in answer to a question as to who should proceed first, the court directed that appellant should first introduce its evidence. Nowhere does it appear that the court, in weighing the evidence, applied a wrong or any particular rule as to burden of proof.

We have, however, considered the evidence in the light of appellant's contentions, and, applying the rule as claimed, we are not willing to disturb the trial court's conclu

sions.

Affirmed.

MYERS v. VELASQUEZ et al. (Circuit Court of Appeals, Fifth Circuit. December 3, 1926.)

No. 4802.

1. Automobiles214-Driving team on main highway, rather than on parallel road less used by automobiles, is not contributory negligence.

One whose team was struck by automobile. on main highway had a right to drive there, rather than on a parallel road less used by au

hearing, writ of error will be considered as sued out purely for delay, and 10 per cent. damages will be awarded under Circuit Court of Appeals rule 30 and Rev. St. § 1010 (Comp. St. § 1671).

In Error to the District Court of the

United States for the Southern District of Texas; Joseph C. Hutcheson, Jr., Judge.

Action by Juana R. de Velasquez and another against W. B. Myers. Judgment for plaintiffs, and defendant brings error. Affirmed.

Edward B. Ward, of Corpus Christi, Tex., for plaintiff in error.

E. P. Scott, of Corpus Christi, Tex., for defendants in error.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

This was a

FOSTER, Circuit Judge. juries and also for damages to a wagon and suit to recover damages for personal inharness, brought by defendants in error against plaintiff in error. The parties will hereafter be referred to as they appeared in the District Court.

The petition alleges in substance that plaintiffs were riding in a one horse wagon on a public highway; that defendant was driving an automobile along the same road, and recklessly and carelessly drove his car up from the rear and against the wagon, and threw plaintiffs with great violence' out of said wagon and onto the ground, and broke up and demolished the said wagon and the harness; that the fall injured the left eye of plaintiff Juana R. de Velasquez, causing her to permanently lose the sight of her left eye. Damages in the sum of $15,000 were claimed for personal injuries, $250 for doctor's bills, $50 for damages to the wagon, and $25 damages to the harness.

Defendant denied the allegations of negligence, and set up, among other grounds of contributory negligence, that at the time of the accident there was a good road running parallel and near to the road on which the accident occurred, and on which horsedrawn vehicles usually traveled, and which few automobiles used, while the road on which the accident was alleged to have happened was much traveled by automobiles;

The case went to the jury, which returned a verdict for $858, divided as follows: Express wagon, $43; harness, $15; doctor's

bill, $50; physical damages, $750. It is difficult to understand why the verdict for damages for the physical injuries was so small, in view of the allegations of the petition; but, as the evidence is not in the record, we are unable to say whether the injury was as extensive and severe as alleged. However, we are not now concerned with that view of the case.

[1] The principal error assigned is to the action of the court in excluding evidence tendered by defendant to show that there was a parallel road that could have been used by plaintiffs and to the remarks of the court in excluding such testimony. The remarks of the court objected to are not set out in the assignment, but from what little there is of the bill of exceptions it would appear that the court did no more than to say in the presence of the jury that the plaintiffs had the right to travel the main highway and were not required to seek another road. It is apparent that this assignment is wholly frivolous.

Without attempting to set them out in full, it is sufficient to say that the other assignments are equally without merit.

[2] No error appears in the record. In affirming the judgment, we note that it was rendered on January 6, 1926. By suing out his writ of error, defendant secured a delay in the execution of the judgment of approximately a year, as in the usual course, the writ being returnable at Fort Worth in November, the case could not be heard and finally decided much sooner. At the hearing the case was submitted on brief, without any personal appearance for plaintiff in error. We conclude that the writ was sued out purely for delay, and will award damages of 10 per cent., conformable to our rule 30 and the provisions of R. S. § 1010 (Comp. St. § 1671), in addition to costs and interest allowed by the judgment. Affirmed.

UNITED STATES v. HEINRICH. (Circuit Court of Appeals, Ninth Circuit. November 15, 1926.)

No. 4892.

Appeal and error ~854 (2)-Reasons assigned for judgment not reveiwable.

An appellate court sits in review of final judgments, and not of opinions, and, if a judg

ed

States for the District of Montana; Charles N. Pray, Judge.

In Error to the District Court of the Unit

Action at law by the United States against Frank M. Heinrich. Judgment for defendant, and the United States brings error. Affirmed.

For opinion below, see 12 F. (2d) 938.

Wellington D. Rankin, U. S. Atty., Francis A. Silver, and Albert Anderson, Asst. U. S. Atty., all of Helena, Mont., and Ethelbert Ward, Sp. Asst. Atty. Gen., for the United States.

W. M. Johnston and H. J. Coleman, both of Billings, Mont., for defendant in error.

Before GILBERT and RUDKIN, Circuit Judges, and NETERER, District Judge.

RUDKIN, Circuit Judge. Section 8 of the Act of June 4, 1920 (41 Stat. 754), provides, among other things, that:

"All expenditures for irrigation work on the Crow reservation, Montana, heretofore or hereafter made, are hereby declared to be reimbursable under such rules and regulations as the Secretary of the Interior may prescribe and shall constitute a lien against the land benefited, regardless of ownership, and including all lands which have heretofore been sold or patented:"

The present action was instituted by the United States to recover the aggregate amount of several annual charges imposed by the Secretary of the Interior upon or against certain lands owned by the defendant, pursuant to the authority thus conferred. A demurrer to the complaint was sustained by the court below, and the government electing to stand on its complaint and refusing to plead further, a judgment of dismissal was entered. The demurrer was sustained upon the ground that the statute imposing the liability is unconstitutional and void. United States v. Heinrich (D. C.) 12 F. (2d) 938. The case has been brought here by writ of error.

After the entry of the judgment in the court below, section 8 of the Act of June 4, 1920, supra, was amended by the Act of May 26, 1926 (44 Stat. 660). The amendatory act provides, that any allotment or part of allotment provided for thereunder, irrigable from any irrigation system now in existence or hereafter constructed by the government on the reservation, shall bear its pro rata share, computed on a per acre basis, of the expenditures made from tribal funds that

were used in constructing such systems, where the Indians in council had not specifically approved such expenditures, and all moneys except gratuities expended on the construction of such irrigation systems out of the appropriations from the treasury of the United States, the amount so in the aggregate to be borne to be ascertained and proclaimed by the Secretary of the Interior.

It was conceded on the argument before this court that the act of 1926 has superseded the act of 1920, and that there can be no recovery in this action, based as it is on the earlier statute. But, while conceding that the complaint states no cause of action, and that the judgment itself is correct, the government insists that it should not hereafter be confronted by an adjudication of the court below, based upon the ground that the earlier act is unconstitutional and void. But this court sits in review of final judgments, not of opinions, and, if the judgment itself is conceded to be correct, we cannot and will not inquire into the reasons assigned therefor. As said by the Supreme Court in Dinsmore v. Southern Express Company, 183 U. S. 115, 121, 22 S. Ct. 45, 47 (46 L. Ed. 111): "As the order of the Circuit Court of Appeals directing the dismissal of the suit accomplishes a result that is appropriate in view of the act of 1901, we need not consider the grounds upon which that court proceeded, or any of the questions determined by it or by the Circuit Court, and the judgment must be affirmed without costs in this court; and it is so ordered."

Petition to Superintend and Revise from the District Court of the United States for the Northern District of Texas; Edward R. Meek, Judge.

In the matter of John Wilson Floore, Jr., and S. P. Norwood, bankrupts, in which J. M. Moore was appointed trustee in bankruptcy. On petition of McCartney, Foster & McGee and others to superintend and revise an order of the District Court refusing to allow the petitioners fees as attorneys for the bankruptcy trustee. Petition denied.

W. B. Harrell, of Dallas, Tex., and C. L. McCartney, of Brownwood, Tex., for petitioners.

C. M. Smithdeal and H. T. Bowyer, both of Dallas, Tex. (Spence, Smithdeal, Shook & Spence, of Dallas, Tex.. on the brief) for respondent.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

FOSTER, Circuit Judge. This is a petition to superintend and revise an order of

In re FLOORE et al.

MOORE.

tioners fees as attorneys for the trustee of the estates of John Wilson Floore, Jr., and S. P. Norwood, bankrupts.

[1] Briefly stated, the material facts are these: Johnson county, Tex., had claims against the two bankrupts and others arising from the same transaction, and employed

agreed fees of $20,000, which have been paid. At the time of this employment it was contemplated that the affairs of the said debtors would be liquidated through the bankruptcy court. After they were adjudicated bankrupts, J. M. Moore, himself an attorney, was elected trustee of both estates at the instance of Johnson county. Thereafter petitioners represented him in various matters, requiring the services of attorneys for several years.

Petitioners made application to the referee for an allowance of fees, and the referee granted the application and allowed fees of $2,000 in the Floore case and $500 in