19 F.(2d) 56 éven though he could not do so at the time of ¬ commencing his suit. But a court of equity will not extend this favor to a vendor who has not done all that was in his power to make out a good title within a reasonable time." In Taylor v. Longworth, 14 Pet. 172, 174, 175 (10 L. Ed. 405), the court said: "And even when time is not thus, either expressly or impliedly, of the essence of the contract, if the party seeking a specific performance has been guilty of gross laches, or has been inexcusably negligent in performing the contract on his part, or if there has, in the intermediate period, been a material change of circumstances, affecting the rights, interests or obligations of the parties, in all such cases, courts of equity will refuse to decree any specific performance, upon the plain ground that it would be inequitable and unjust. But in all such cases the court expects the party to make out a case free from all doubts, and to show that the relief which he asks is, under all the circumstances, equitable, and to account in a reasonable manner for his delay, and apparent omission of his duty." "While the holdings of the court as indicated by these cited cases may differ slightly, through them all runs a similar principle, viz.: The inequity of permitting claims to be enforced where the party asserting the same has not been diligent and the enforcement under conditions at the time the attempt is made would result in injustice. Many elements bear upon the question of due diligence in prosecuting; such, for instance, as the nature of the property in dispute; the nature of the remedy; the kind of agreement sought to be enforced; the nature of the relief demanded. "The nature of the property in dispute may require more prompt action than otherwise. This is especially true as to mining and oil properties such as the situation in the case at bar. There is a special reason as to these properties why the courts should hold the parties to a rigorous rule as to laches. The doctrine is well settled, both in the English courts and the courts of this country, as to the relentless enforcement of the doctrine of laches where the subject of controversy is mining and oil property, purely speculative See, also, Kittinger v. Rossman, 12 Del. in value." Ch. 276, 112 A. 388. [3] Great decrease in value of the land during the delay is an important element to be considered in determining whether specific performance shall be granted to the party responsible for the delay. Holgate v. Eaton, 116 U. S. 33, 6 S. Ct. 224, 29 L. Ed. 538. In Galliher v. Cadwell, 145 U. S. 368, 373, 12 S. Ct. 873, 875 (36 L. Ed. 738), the court said: Laches is not like limitation, mere matter of time, but principally a question of the inequity of permitting the claim to be enforced-an inequity founded upon some change in the condition or relations of the property or the parties." 66 a In Lemoine v. Dunklin County (C. C. A.) 51 F. 487, 492, this court said: "Laches is imputed independently of the statute of limitations. Courts of equity apply the doctrine on principles of their own, and time is only one of the circumstances to be considered in its application. The lapse of time which will induce the court to apply the doctrine may be longer or shorter, depending on the circumstances of the particular case. Among the circumstances which will induce its application in a comparatively brief period are the changed condition of the property, particularly in respect to its value." In Taylor v. Salt Creek Consol. Oil Co., 285 F. 532, 539, 540, this court, after reviewing a large number of cases touching the question of laches, said: [4] Applying the principles of the foregoing cases to the facts in the case at bar, we conclude that plaintiff failed to tender performance within a reasonable time, and for that reason he is not entitled to the relief of specific performance. [5] Furthermore, we do not think that the evidence shows a tender of full performance on the part of appellee. The contract for lease between appellee and Sanders and Wise contemplated that the latter parties should obtain title to the land. They did not do this, but obtained instead a mineral grant from one Taylor, the former owner with whom the liti the following provision: "If oil or other mingation was had. This mineral grant contained erals be found in paying quantities then, the able rental not to exceed $3 per year per acre grantee or their assigns agree to pay a reasonfor such portion of the surface as they shall occupy in their operations so long as they shall use same." This mineral grant with its conditions appeared on the abstract which was tendered by appellee to appellant. Yet in the assignment of lease which appellee tendered at the same time appears the covenant "that the undersigned has good right and authority to sell and convey the same, and that said rights, interest and property are free and clear from all liens and incumbrances, and that all rentals and royalties due and payable thereunder have been duly paid." Clearly the condition contained in the mineral grant from Taylor was an incumbrance; and hence the title tendered by appellee to appellant was not a merchantable title, such as he was bound to furnish. In Maupin on Marketable Title to Real Estate (3d Ed.) § 305, it is stated: "A purchaser cannot be compelled to complete his purchase or accept the title if there is an incumbrance on the property which the vendor cannot or will not remove, and which the purchaser cannot himself remove by an application of the purchase money. Of this kind are easements, servitudes, rights of way, reservations of minerals, building restrictions, restrictions as to uses, unexpired leases, charges upon the property for the support of particular persons, inchoate rights of dower, outstanding life interests, outstanding contract interests." (Italics ours.) See, also, Gates v. Parmly, 93 Wis. 294, 66 N. W. 253, 67 N. W. 739; Campbell v. Harsh, 31 Okl. 436, 122 P. 127. Effort is made by appellee to minimize this incumbrance, and to show that the possibility is remote of its ever being an embarrassment to appellant. We do not think that the showing is such as to render the incumbrance negligible. [6] In certain cases where on the trial the vendor shows that the incumbrance has been removed, specific performance has not been refused. Rice v. Theimer, 45 Okl. 618, 146 P. 702. But in the case at bar no offer was made by appellee to remove the incumbrance, or to show that it could be removed by him. In such cases specific performance will not be compelled. Hardy v. Deskins, 95 Okl. 108, 215 P. 738. We conclude that the title offered by appellee in performance of his contract was not a merchantable title. As the foregoing considerations dispose of the case, it is unnecessary to consider the other questions raised. Decree reversed, with instructions to enter decree dismissing the bill. In Error to the District Court of the United States for the Southern Division of the Northern District of California; Frank H. Kerrigan, Judge. Action at law by H. Delpit against the United States Shipping Board Emergency Fleet Corporation. Judgment for defendant, and plaintiff brings error. Reversed, for want of jurisdiction of court below, and remanded, with directions. H. W. Hutton, of San Francisco, Cal., for plaintiff in error. Geo. J. Hatfield, U. S. Atty., and Esther B. Phillips, Asst. U. S. Atty., both of San Francisco, Cal., for defendant in error. Before GILBERT, RUDKIN, and DIETRICH, Circuit Judges. RUDKIN, Circuit Judge. This was action to recover damages for assault and false imprisonment. The plaintiff is a citizen and resident of the state of California. The defendant is a corporation organized and existing under the laws of the United States. The amount in controversy is less than $3,000. The action was commenced in a state court of California, but was removed to the United States District Court on the petition of the defendant, on the ground that the controversy is between citizens of different states, and "that the defendant, the United States Shipping Board Emergency Fleet Corporation, is organized under and depends upon the laws of the United States of America, namely, the Shipping Act of 1916, and is incorporated under the laws of the District of Columbia; and this suit arises under a federal law regulating commerce, to wit, said Shipping Act of 1916, whereof the District Court of the United States has 19 F.(2d) 60 original jurisdiction under section 24 of the not involved, and because there is no diJudicial Code." versity of citizenship; a corporation created under the laws of the District of Columbia not being a citizen of any state. Hooe v. Jamieson, 166 U. S. 395, 17 S. Ct. 596, 41 L. Ed. 1049. Nor can jurisdiction be sustained on the second ground, because the jurisdictional amount is just as essential there as in the case of a diversity of citizenship. After removal, a trial was had, resulting in a judgment in favor of the defendant. The plaintiff prosecuted a writ of error, and his first assignment of error challenges the jurisdiction of the court below, on the ground that that court acquired no jurisdiction by the removal. Section 28 of the Judicial Code (Comp. St. § 1010) provides that any suit of a civil nature, at law or in equity, arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority, of which the District Courts of the United States are given original jurisdiction, which may now be pending or which may hereafter be brought in any state court, may be removed by the defendant or defendants therein to the District Court of the United States for the proper district; and any other suit of a civil nature, at law or in equity, of which the District Courts of the United States are given jurisdiction, and which are now pending or which may hereafter be brought in any state court, may be removed into the District Court of the United States for the proper district by the defendant or defendants therein, being nonresidents of that state. The first subdivision of section 24 of the Judicial Code (Comp. St. § 991) provides that the District Courts shall have original jurisdiction "of all suits of a civil nature, at common law or in equity, where the matter in controversy exceeds, exclusive of interest and costs, the sum or value of three thousand ($3,000) dollars, and (a) arises under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority, or (b) is between citizens of different states, or (c) is between citizens of a state and foreign states, citizens, or subjects." The eighth subdivision of the same section provides that the District Courts shall have original jurisdiction "of all suits and proceedings arising under any law regulating commerce, except those suits and proceedings exclusive jurisdiction of which has been conferred upon the Commerce Court." [1, 2] Three grounds of federal jurisdiction are thus suggested in the petition for removal: First, diversity of citizenship; second, a controversy arising under the laws of the United States; and, third, a controversy arising under a law regulating commerce. Jurisdiction cannot be sustained on the first ground, because the jurisdictional amount is "It is clear that a Circuit Court cannot, under that statute, take original cognizance of a case arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority, or of a controversy between citizens of different states, or of a controversy between citizens of a state and foreign states, citizens or subjects, unless the sum in dispute, exclusive of interest and costs, exceeds $2,000, because in immediate connection with the enumeration of each of such cases will be found expressed a limitation of that character in respect of the sum or value necessary to give jurisdiction." United States v. Sayward, 160 U. S. 493, 16 S. Ct. 371, 40 L. Ed. 508. See, also, Fishback v. Western Union Telegraph Co., 161 U. S. 96, 16 S. Ct. 506, 40 L. Ed. 630; Holt v. Indiana Manufacturing Co., 176 U. S. 68, 20 S. Ct. 272, 44 L. Ed. 374. In Sloan Shipyards v. U. S. Fleet Corp., 258 U. S. 549, 42 S. Ct. 386, 66 L. Ed. 762, the court held that the Emergency Fleet Corporation had the powers of corporations created under the laws of the District of Columbia, where it was incorporated, and was liable to be sued, there and elsewhere, upon its contracts and for its torts, notwithstanding the fact that it was a federal agency and that its stock was taken entirely by the United States. True, it was also held that suits against it might be removed to the courts of the United States, citing Pacific Railroad Removal Cases, 115 U. S. 1, 5 S. Ct. 1113, 29 L. Ed. 319; but the court there had reference to the general right of removal existing in favor of corporations organized under the laws of the United States, which has always been held to be subject to the pecuniary limitation. [3] Does this action arise, then, under any law regulating commerce, within the true intent and meaning of subdivision 8 of section 24 of the Judicial Code? It has apparently been so held in the following District Court cases. Ingram Day Lbr. Co. v. United States S. B. E. F. Corp., 267 F. 283; Harry Porter Co. v. U. S. Shipping Board E. F. Corp., 284 F. 397; Hill v. U. S. Shipping Board E. F. Corp., 284 F. 398; James v. United States Shipping Board Emergency Fleet Corp, 12 F.(2d) 89. The first was an action to recover approximately $900 for building material delivered to the defendant under an express contract; the second was an action to recover approximately $2,000 for services performed in preparing advertising matter for the defendant; in the third the nature of the controversy is not stated; and the fourth was an action to recover a balance due for salary, amounting to approximately $800. All of these actions, with the possible exception of the third, were based upon contract, and whether they are distinguishable from the present action in tort we need not inquire. But we are at a loss to understand how a tort action, such as this, can be said to arise under a law regulating commerce. The action was not brought to recover damages for breach of any duty imposed by the Shipping Act (Comp. St. §§ 8146a-8146r), assuming that that act is a law regulating commerce. The duty violated by the defendant, if any, was a duty imposed by the common law, or by some other statute, and unless every action of every kind against the Fleet Corporation is removable to the federal courts, because arising under a law regulating commerce, this action was not removable. The jurisdiction conferred on the District Courts by subdivision 8 is coupled with the jurisdiction conferred on the Commerce Court, and primarily at least that jurisdiction has relation to suits for violations of interstate commerce laws, such as suits for overcharges and undercharges, and other suits based on laws regulating interstate commerce. In this view it would not seem that an action to recover damages for breach of a common-law or statutory duty arises under a law regulating commerce, any more than would a like action against any other interstate carrier, such as the Pacific Railroads in the Pacific Railroad Removal Cases, supra. For these reasons we are of opinion that the court below acquired no jurisdiction by the removal, and, if it did not, jurisdiction could not thereafter be conferred by consent of parties, or by stipulating as to time or mode of trial. The judgment is reversed, for want of jurisdiction in the court below, and the case is remanded to that court, with directions to remand the case to the state court whence it was removed. MASSENBERG et al. v. UNITED STATES. Circuit Court of Appeals, Fourth Circuit. April 12, 1927. No. 2546. 1. Criminal law 911, 1156(1)-Ruling on motion for new trial is discretionary, and not reviewable. tionary, and not assignable as error. Ruling on motion for new trial is discre 2. Criminal law 972-Motion in arrest must be based on matters appearing of record. That verdict is based on insufficient evidence is not ground for motion in arrest, which must be based on matters of record, or which should appear of record. 3. Criminal law 1036 (8)-To be reviewable, objection of insufficiency of evidence should be raised before verdict. The point that evidence was insufficient to sustain a count of the indictment should be made before verdict, by motion to direct a verdict on that count, by appropriate request for instructions, or by exceptions to the charge given; otherwise, it cannot ordinarily be reviewed on writ of error. 4. Criminal law 971(1)-Inconsistency of findings on different counts is no ground to arrest judgment. Inconsistency between findings on different counts of indictment is not ground for motion in arrest of judgment. 5. Witnesses 345 (4)-Witness may not be impeached by showing unproved charges against him. Under the federal rule, a witness may not be asked on cross-examination, for purpose of impeachment, as to indictments against him on which he has not been convicted. 6. Criminal law cretionary. 651(1)-Jury view is dis Permitting jury to view premises is discretionary with court. 7. Criminal law 925(1)—Denial of new trial for improper comments in jury's presence held discretionary. Denial of new trial, asked on ground of improper comments made in presence of jury, held within discretion of court. In Error to the District Court of the United States for the Eastern District of South Carolina, at Charleston; Ernest F. Cochran, Judge. Criminal prosecution by the United States against J. O. Massenberg and J. W. Ebner. Judgment of conviction, and defendants bring error. Affirmed. George F. Von Kolnitz and A. R. McGowan, both of Charleston, S. C. (Thomas P. Stoney, of Charleston, S. C., on the brief), for plaintiffs in error. 19 F.(2d) 62 Louis M. Shimel, Asst. U. S. Atty., of Charleston, S. C. (J. D. Meyer, U. S. Atty., of Charleston, S. C., on the brief), for the United States. Before ROSE and PARKER, Circuit Judges, and BAKER, District Judge. PARKER, Circuit Judge. The plaintiffs in error, Massenberg and Ebner, hereinafter called defendants, were convicted of conspiracy to violate the National Prohibition Act, and of selling intoxicating liquors in violation thereof. They were indicted with three other defendants, Dukes, Goff, and Witt, under an indictment containing five counts, charging respectively conspiracy to violate the Prohibition Act, possession, transportation, and sale of intoxicating liquors, and giving information as to how intoxicating liqnors might be obtained. The offenses charged in the second, third, fourth, and fifth counts of the indictment were charged as overt acts under the first or conspiracy count. As above stated, Massenberg and Ebner were convicted of conspiracy and sale. They were acquitted under the other counts, whereas Dukes and Goff were convicted of possession, transportation, and sale, but were acquitted of conspiracy. Witt was acquitted under all counts. The points upon which Massenberg and Ebner rely are: (1) That the evidence was not sufficient to warrant their conviction of the crime of conspiracy; (2) that the judg ment should have been arrested for incon sistency in the verdict; (3) that defendants should have been allowed to cross-examine a government witness, for the purpose of impeachment, as to indictments for and charges of crime made against him, but as to which conviction had not been had; (4) that the jury should have been sent to view the premises where the testimony was that the negotiations for the sale of liquor were carried on; and (5) that a new trial should have been awarded on account of improper comments alleged to have been made in the hearing of the jurors during a recess of the court. We shall consider these in order. [1,2] The point as to the sufficiency of the evidence on a charge of conspiracy was not raised by motion for a directed verdict or in other proper manner. Defendants rely upon a motion in arrest of judgment and for a new trial, made upon this ground after verdict; but it is well settled that the granting or refusing of a new trial is a matter esting in the discretion of the trial judge, and that his action on such motion is not assignable as error. Moore v. U. S., 150 U. S. 57, 14 S. Ct. 26, 37 L. Ed. 996; Blitz v. U. S., 153 U. S. 308, 14 S. Ct. 924, 38 L. Ed. 725; Sprinkle v. U. S. (C. C. A. 4th) 141 F. 811, Towe v. U. S. (C. C. A. 4th) 238 F. 557; Albert v. U. S. (C. C. A. 6th) 281 F. 511. And the motion in arrest of judgment must be based upon matters apof record. 16 C. J. 1251, and cases cited. pearing of record or which should appear And that the verdict is contrary to the evidence, or is based on insufficient evidence, Towe v. U. S., supra; Demolli v. U. S. (C. cannot be urged in support of such motion. 424, 7 Ann. Cas. 121; U. S. v. Marrin (D. C. A. 8th) 144 F. 363, 6 L. R. A. (N. S.) C.) 159 F. 767; U. S. v. Erie R. Co. (D. C.) 222 F. 444. [3] The point that there was no sufficient evidence to sustain the charge of conspiracy should have been raised before verdict, by motion to direct a verdict on that count, by appropriate prayers for instruction, or by exceptions to the charge. Loewenthal v. U. S. (C. C. A. 6th) 274 F. 563. Where the point is not thus saved, the sufficiency of the writ of error. evidence cannot ordinarily be reviewed by Tincher v. U. S. (C. C. A. 4th) 11 F. (2d) 18; Robins v. U. S. (C. C. A. 8th) 262 F. 126. In exceptional cases, notice plain error not properly excepted to; to prevent serious injustice, the court will contrary, we have read the evidence, and it but no such case is presented here. On the shows clearly, not only that the defendants but also that there existed between them that were guilty of violating the Prohibition Act, "partnership in criminal purposes" which is the essence of the crime of conspiracy. Belvin v. U. S. (C. C. A. 4th) 12 F. (2d) 548. Even if the point had been appropriately raised, therefore, there can be no question under the decisions of this court that the evidence was amply sufficient to sustain the verdict. See Fisher v. U. S. (C. C. A. 4th) 2 F. (2d) 843; Simpson v. U. S. (C. C. A. 4th) 11 F.(2d) 591; Belvin v. U. S., supra; Fisher v U. S. (C. C. A. 4th) 13 F.(2d) 756; Di Bonaventura v. U. S. (C. C. A. 4th) 15 F.(2d) 494. [4] It is next urged that the judgment should have been arrested for inconsistency between the findings on the different counts of the indictment. We do not think that there is inconsistency between the findings; but, if there were, this would not constitute ground for arresting the judgment. Seiden v. U. S. (C. C. A. 2d) 16 F.(2d) 197; Gozner v. U. S. (C. C. A. 6th) 9 F. (2d) 603; Carrignan v. U. S. (C. C. A. 7th) 290 F. |