16 F. (2d) 29 the writ of error was not seasonably sued out. We think it was such an order. It is conceded by counsel for the plaintiff that the orders of May 4, 1925, and April 2, 1926, "amount to the same thing," and that their wording "was a mere matter of accidental choice." An order discharging a trustee or garnishee is final. It dissolves the attachment, and thus ends the litigation between the parties concerned. McDermott v. Hayes, 197 F. 129, 135, 116 C. C. A. 553. [4] Then, again, rule 22 of the District Court in regard to the entry of judgments in actions of law (rules promulgated February 15, 1916) provides: "When no special award of judgment is otherwise made, judgment shall be entered as of the last day of the term; Provided, however, that this rule shall not apply in cases where the time for filing exceptions has not expired or where the allowance of exceptions is pending; and provided, further, that judgment on default for non-appearance shall not be entered except upon motion or after such notice as the court shall order." This rule contemplates that, when a cause is ripe for judgment, and no judgment has been specially awarded at the term, and the time for filing bills of exceptions has expired, or no allowance of bills of exceptions is pending, judgment shall be entered as of the last day of the term. [5] This cause, as between the plaintiff and the trustees, was ripe for judgment at the March term, 1925, the last day of which was Monday, June 22, 1925; and if, as the plaintiff contends, no judgment was entered on May 4, 1925, or at any time during the March term, the judgment entered after that term was required by rule 22 to "be entered as of the last day of the term," to wit, June 22, 1925. The order or judgment, therefore, of April 2, 1926, is to be regarded as entered as of June 22, 1925, and, when so considered, the writ of error was not sued out within the time required by law, and must be dismissed. The writ of error is dismissed, with costs to the New England Trust Company, de fendant in error. versible; the part applicable to defendant being brought out by counter charges by defendants' counsel. 2. Criminal law 633 (1)-Denial of motion for mistrial for proceedings relating to jury bribe held discretionary. Denial of a motion for mistrial because of proceedings relating to an alleged attempt to bribe a juror and newspaper publication of the same, held within the discretion of the trial judge, and not error, where the jury were instructed to give the matter no consideration. 3. Criminal law 726-Retaliatory remarks of counsel held not reversible error. will not constitute reversible error, when made Improper remarks by prosecuting counsel in response to like remarks by defendant's counsel. KERRIGAN, District Judge. This case comes before us upon a writ of error to review a judgment of conviction of conspiracy to violate the National Prohibition Act (Comp. St. § 101384 et seq.). The indictment charges that the defendants were qualified and acting prohibition officers of the state of Oregon, and conspired and agreed among themselves that they would apprehend persons found violating said act, and, instead of detaining them and preferring charges against them, would demand and receive money from them, and would seize for their own use any intoxicating liquor illegally possessed by such persons, and would free and release and give immunity to such persons; further, that the defendants would connive and negotiate with persons engaged in the illegal manufacture of intoxicating liquor, and would promise and agree not to ar rest them, provided and in the event such persons paid to defendants certain sums of money for protection and freedom from arrest, and that they would undertake to warn such persons of any impending raid or arrest which might threaten them, to the end that such persons would be enabled to carry on their unlawful enterprise. There is no claim that the evidence is insufficient to support the verdict, nor could such a claim well be made, for the evidence abundantly sustains the verdict of conviction. [1] One of the assignments of error relates to an attempt to bribe one of the members of the jury sitting on the case; the claim being made that the manner in which it was brought to the notice of the jury was highly prejudicial to the defendants and prevented them from having a fair and impartial trial. The facts concerning this matter are that, on or about the 8th day of the trial one Paul Bradshaw, through an intermediary, had attempted to bribe James E. Lawrence, one of the jurors in the case. Lawrence at once called the matter to the attention of the district attorney. Thereafter the court was advised of what had happened, and, realizing that it was proper that the jurors should be apprised of their duty when confronted with such an occurrence, asked the district attorney if he had any matter to which he desired to call the court's attention; whereupon the district attorney related what had occurred as just stated, adding that he had filed a complaint and caused a warrant to issue for the arrest of Bradshaw, who had been arrested and was then in custody or had been released on bond. At this point in the proceedings counsel for the defendants asserted that he had been informed by an attorney, who was willing to come into court and testify, that one Roy Moore, a witness for the government, was hostile to the defendants, and that ́the attempted bribery of a juror was a trick by Moore to injure the defendants and preju.dice their case before the jury; that Bradshaw and Moore were intimates; and that the defendants did not know Bradshaw. To this and more along the same line the district attorney replied that his office had no contact with Bradshaw, and that, if any attempt had been made to bribe a juror, it had not been made by the government, that he had seen counsel for the defendants and Bradshaw in conversation together in the courtroom, and that such counsel had represented Bradshaw after he was arrested on the previous evening. In the statement by the district attorney, first made, nothing had been said from which the jury could infer that the attempted corruption of the juror was for the benefit of the defendants; but their counsel were not satisfied with what had been said on the subject, and, instead of contenting themselves with disclaiming on behalf of their clients all connection with the matter, made charges against Roy Moore, one of the principal witnesses for the government, without any foundation therefor so far as the record shows a course calculated to injuriously affect the government's case. It was then that the district attorney challenged the correctness of the statement of counsel, and, as we have seen, answered in kind. [2] It is plain that the remarks of the prosecuting officer were provoked by the accusation of counsel for the defendants, for which reason defendants cannot be heard to complain. This was probably the view taken by defendant's counsel at the time, for no exception was noted to the statement of the district attorney, nor was it assigned as misconduct. But the next day the Morning Oregonian, a newspaper of large circulation in the state of Oregon, published an account of the attempted bribery, and two days later the defendants moved the court, out of the presence of the jury, for an order granting a mistrial on account of said attempted bribery and the published reference thereto in said newspaper. This motion was denied. The question whether or not the attempted bribery of the juror and the published account there injuriously affected the defendants was one resting largely in the sound discretion of the trial court; and we think the court did not abuse its discretion in denying the motion to dismiss the jury on that ground. The newspaper account was a bare narrative of the occurrence, contained nothing which appealed to the passion or prejudice of its readers, and, so far as the incident itself was concerned, the jury was admonished by the court to dismiss the matter from their minds and to give it no consideration, and in effect that they were bound to decide the case on the evidence received at the trial and upon that alone, subject to the instructions of the court. As was stated by the venerable trial judge when referring to this matter in the order overruling a subsequent motion for a new trial, "In this day and age, intelligent men, with honest motives, do not readily yield to the promptings of caprice, and courts may confidently depend upon their unbiased judgment when properly instructed touching their duty in exigencies of the character here impending." 16 F. (2d) 29 Another of the principal assignments of error relates to the alleged misconduct of the prosecuting officer in the course of the trial. James Stayton had been served with a subpoena to attend as a witness on behalf of the prosecution, but disappeared on the eve of the trial. During the trial on various occasions counsel for the defendants, by questions put to the witnesses, insinuated that officers of the government were responsible for such disappearance. Finally the district attorney retaliated by stating that, if the defendants would produce Stayton, the government would place him on the stand. In this connection the defendants also complain that the district attorney again brought the incident of the attempted bribery before the jury. During the direct examination of a witness called for the defendants, counsel asked him if he knew Bradshaw—who, it will be remembered, was the person charged with the attempted bribery-and the witness answered that he did not. Upon cross-examination, he was again asked by the district attorney if he did not know Bradshaw, there being included in the question, evidently for the purpose of identification, the statement that Bradshaw during the trial had been sitting behind counsel for the defendant and had been in consultation with them. To this question counsel's only objection at the time was that it included the statement that they had been in consultation with Bradshaw, which they denied, but tacitly admitted that he had been a visitor in the courtroom and had sat where designated behind counsel for the defendants and on several occasions talked with one or other of them. Counsel not only at the trial, but in their briefs, brought in much extraneous matter. The trial was at times acrimonious, so much so that the court in its instructions in part said: "It has come within your observation that counsel in this case during the trial have not always been in accord in the presentation of their evidence, and have resorted to somewhat sarcastic and uncomplimentary remarks touching the other's conduct and method of procedure. I call your attention to this to advise you that you should not under any persuasion let these matters influence your judgment and verdict in the final determination of this cause. You will simply set aside those bickerings and give them no consideration whatever." [3] Of course the district attorney, while charged with the duty of prosecuting offenders against the law, ought to be fair and impartial; but it frequently happens that defendants' counsel think they are entirely absolved from pursuing a like course, which provokes retaliation on the part of the prosecution. Allowance must be made for human nature, and much attributed to the zeal which rightly characterizes both those engaged in the defense and the prosecution of a case. It would seem that here the second reference to the Bradshaw incident, about which complaint is made, was manifestly the fault of counsel for the defendants; and so, with reference to the matter of the witness who had disappeared, the retort of the prosecuting officer was prompted by a sense of fair play. It must be true that improper remarks of counsel will not constitute ground for reversal of a judgment when made in response to remarks of like nature by opposing counsel, especially when, as here, the court in proper time promptly admonishes the jury to disregard the controversy. "If the defendant wishes to invoke the rule of confinement to the record, they themselves must keep within the record. the record. When they voluntarily go outside, they at least invite, if they do not render it necessary, that the prosecution should follow." Dimmick v. U. S., 135 F. 257, 70 C. C. A. 141. [4] It is urged that the verdict is fatally defective, in that the defendants were found guilty of conspiracy, and at the same time not guilty on all the counts charging overt acts as substantive offenses. This assignment is wholly without merit, for the reason that certain of the overt acts alleged were not charged as substantive offenses, and as to these no inconsistency can possibly exist. Worthington v. U. S. (C. C. A.) 1 F.(2d) 154; Morris v. U. S. (C. C. A.) 7 F.(2d) 785. There are other assignments of error, some relating to the admission of evidence, others concerning instructions given to the jury, none of which have sufficient merit to warrant a reversal of the judgment. The instructions were full and fair, and show evidence of painstaking care on the part of the trial judge, who in a protracted trial and in ruling on the antagonistic contentions of counsel at no time lost sight of the rights of the defendants accorded them by our Constitution and laws. The judgment is affirmed. 769, 71 L.Ed. 32 16 FEDERAL REPORTER, 2d SERIES ANASTASOPOULOS et al. v. STEGER & (Circuit Court of Appeals, Seventh Circuit. No. 3764. 1. Courts 347-Amended bill, which was rearranged copy of original bill, dismissed as being vague and uncertain, held properly dismissed (equity rule 25). Where original bill violated equity rule 25, as being vague, indefinite, uncertain, and containing arguments and conclusions, amended bill, which was simply a сору, with some rearrangement and additions, held properly dismissed. 2. Creditors' suit 39(1)—Bill against several defendants, alleging Insolvency of only one, held not good as creditors' bill. Bill against several defendants, all charged with doing things alleged to give rise to cause of action, and averring insolvency as to only one, held not good as a creditors' bill. 3. Pleading 18-Allegation that defendants did not have honest intention and purpose to do things charged in Indefinite way cannot be made basis of action for fraud. Allegation that defendants did not have honest intention and purpose to do certain things, charged in roundabout and indefinite way as having induced plaintiffs to part with money, cannot be made the basis of an action for fraud. Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois. Suit by Stamatis Anastasopoulos and others against the Steger & Sons Piano Manufacturing Company and others. Decree dismissing the bill, and plaintiffs appeal. Affirmed. ty rule No. 25, and in its memorandum said: are sustained, with leave to amend within 30 The motions to dismiss the amended bill were sustained, "with leave to reframe same within 30 days to comply with equity rules." Shortly before this time expired, appellants filed their second amended bill. This contains 42 paragraphs, and occupies 35 pages of the printed record. Defendants moved to dismiss for the same reasons addressed to the original bill and the first amended bill. The court sustained the motions, "and, the plaintiffs in open court having elected to stand by their second amended complaint," it was dismissed for want of equity. [1] We cannot undertake to make a synopsis of any one of these bills. Appellants in their brief, in an attempt to set forth what they call the substance of the second amended bill, take 37 closely printed pages to do it. The original bill did not comply with equity rule 25, was prolix, indefinite, uncertain, filled with repetitions, redundancies, and conclusions, and the court properly directed it to be "radically reframed." The first amended Before EVANS, PAGE, and ANDER- bill, with some rearrangement of its averSON, Circuit Judges. Joseph R. Roach, of Chicago, Ill., for appellants. Benson Landon, of Chicago, Ill., for appellees. ANDERSON, Circuit Judge. Appellants complain of the dismissal of their second amended bill. The original bill contained 39 paragraphs, is set out in the printed record, and occupies 25 pages thereof. A motion to dismiss it was filed upon the ground, among others, that "said bill is vague, indefinite, and uncertain, and contains many arguments and many conclusions, and does not allege facts, by reason of which said bill violates clause 3 of equity rule No. 25." The court sustained this motion to dismiss, holding that the bill did not comply with equi ments and paragraphs, is a copy of the original bill, with additions to it, and the second amended bill is a like copy of the first amended bill, with still further additions to it. The first amended bill did not comply with the rule or with the order of the court, nor does the second bill do any better in this regard. Each amended bill offends against the rule and the order of the court more than its predecessor. The propriety of dismissing the second amended bill under the circumstances is not open to question. But it is insisted that the bill should not have been dismissed, if any material part of it is good; that is to say, in this case, the 16 F. (2d) 33 court should have hunted through the mass of repetitions, redundancies and conclusions in the bill, in an effort to dig out of it a stated cause of action. [2] Appellants in urging this suggest two theories for upholding the bill: That it is good as a creditor's bill; and that it is sufficient to charge defendants as trustees ex maleficio. Conceding the general rule in creditors' bills, as to judgment, execution, and return nulla bona, they maintain that the case falls within one of the recognized exceptions; that is, where a judgment and execution would be of no avail because of the insolvency of the defendants. The defendants are all charged with doing the things that are supposed to give rise to a cause of action, and there is no averment as to the insolvency of any but one. So far as the averments in the bill go, all the other defendants are solvent, and a judgment at law would furnish a complete remedy. The bill is not good as a creditors' bill. under Const. Minn. art. 10, § 3, facts held to show that defendant never parted with title to stock, and was therefore liable to assessment. 3. Corporations 273-Interest on assessment against stockholder in Insolvent corporation should be allowed from date of action to collect, not from date of assessment, in absence of demand (Const. Minn. art. 10, § 3). Where court on August 30, 1920, ordered in insolvent corporation, under Const. Minn. 100 per cent. assessment against stockholders art. 10, § 3, payable within 30 days, but no demand for payment was made before commencement on March 23, 1922, of action to on assessment, interest should be allowed from latter date. collect assessment In Error to the District Court of the United States for the Eastern Division of the Northern District of Illinois. Action by E. G. Robie, as receiver of the Northern Fish Company, against Robert Boak. Judgment for plaintiff, and defendant brings error. Affirmed, on condition of remittitur. John R. Montgomery, of Chicago, Ill., for plaintiff in error. James J. Courtney, of Duluth, Minn., for defendant in error. Before ALSCHULER, EVANS, and PAGE, Circuit Judges. [3] Nor is it sufficient to hold defendants as trustees ex maleficio. The basis of this action is fraud. The bill, to be good on this theory, must, among other things, charge that representations were made as to material facts and that such representations were false. Many representations of fact are charged, but only one of them is alleged to be false; that is, that the defendants did not "have an honest intention and purpose" to do certain things which are charged in a roundabout and indefinite way as having been inducements to plaintiffs to part with their money. Such a statement of an intention, even though false, cannot be made the basis of an action for fraud. The bill is insufficient upon either theory came the owner of 90 shares of this stock; urged, and the decree is affirmed. EVAN A. EVANS, Circuit Judge. This action was brought to enforce an alleged liability against plaintiff in error, herein called defendant, growing out of a 100 per cent. assessment on 90 shares of capital stock issued by the Northern Fish Company, a Minnesota corporation. Plaintiff's theory was that defendant subscribed for and be that under the laws of Minnesota (article 10, § 3, Minnesota Constitution) such stockholder became liable to an assessment of the amount of such stock ($9,000) upon the company's becoming insolvent. Defendant contends that he never subscribed for any stock, and was never the owner of any stock, in the Northern Fish ComHe further takes the position that the pany. indebtedness of such company at the time it is alleged he acquired the stock was never shown, and that his liability terminated long before the liquidation proceedings were instituted in the Minnesota state court, because of an alleged retransfer of the stock to the president of the company; that the principal creditor of the Northern Fish Company was its president, whose conduct now precludes him from enforcing his claim against defendant. |