189; 1 Zoline's Fed. Crim. Law and Procedure, 451. As was well said by the Circuit Court of Appeals of the Sixth Circuit in the Gozner Case, supra:

"It is elementary that, where an indictment contains several counts, each count is, in contemplation of law, a separate and distinct indictment. It necessarily follows that the finding of the jury as to each one of such counts must be considered as an independent verdict, separate and distinct from, and not limited nor affected by, the findings of the jury as to the other counts." There is nothing in Edwards v. U. S. (C. C. A. 4th) 266 F. 848, in conflict with the rule as stated here. That case merely decided that, where the only count upon which a defendant was convicted was materially defective, advantage could be taken of that defect in the appellate court. While mention was made of the inconsistency of the verdict, the reversal was based upon the defect of the only count in the indictment upon which a conviction was had.

[5] Error is assigned, in that the judge refused to allow defendants, on cross-examination of the principal witness for the government, to ask him by way of impeachment as to indictments against him in cases wherein he had not been convicted. The court ruled that the witness might be asked as to convictions of crime, but not as to indictments and accusations against him. This was clearly correct. The scope of the cross-examination is governed, of course, by the federal, and not by the state, practice. Rosen v. U. S., 245 U. S. 467, 38 S. Ct. 148, 62 L. Ed. 406; Hendrey v. U. S. (C. C. A. 6th) 233 F. 5; Erwin v. U. S., 37 F. 470, 488, 2 L. R. A. 229; 27 R. C. L. 57; 1 Zoline's Fed. Crim. Law and Procedure, p. 247. And in the view taken by the federal decisions the fact that an unproven charge has been made against one does not tend logically to prove his guilt of an offense or to affect the credibility of his testimony. Consequently it is not permissible, on cross-examination, even for the purpose of impeachment, to inquire as to indictments or accusations against the witness. Mitrovich v. U. S. (C. C. A. 9th) 15 F. (2d) 163; Dawson v. U. S. (C. C. A. 9th) 10 F. (2d) 106; Souza v. U. S. (C. C. A. 9th) 5 F. (2d) 9; Glover v. U. S. (C. C. A. 8th) 147 F. 426, 8 Ann. Cas. 1184; Coyne v. U. S. (C. C. A. 5th) 246 F. 120; Walker Grain Co. v. Blair Elevator Co. (C. C. A. 5th) 254 F. 422; 1 Zoline's Fed. Crim. Law and Procedure, p. 306. As bearing upon the question generally, see 2 Wigmore on Evidence

(2d Ed.) § 982, p. 366, and note 16 Ann. Cas. 872.

[6] Whether the judge should have permitted the jury to view the premises where the sales of liquor were said to have been negotiated was a matter resting in his sound discretion, and his action with respect thereto is not subject to review. 26 R. C. L. 1017. [7] The denial of the motion for a new trial made on the ground of improper comments in the presence of the jury was also a matter resting in his sound discretion. Holmgren v. U. S., 217 U. S. 509, 521, 30 S. Ct. 588, 54 L. Ed. 861, 19 Ann. Cas. 778; Mattox v. U S., 146 U. S. 140, 13 S. Ct. 50, 36 L. Ed. 917; Newcomb v Wood, 97 U. S. 581, 24 L. Ed. 1085; Sprinkle v. U. S. (C. C. A. 4th) 141 F. 811; Ader v. U. S. (C. C. A. 7th) 284 F. 13. It appears that the learned and careful judge who presided over the trial thoroughly investigated the facts with regard to the alleged improper comments, and concluded that they could not have influenced the verdict, and an examination of the record with regard to this matter convinces us that he correctly and wisely exercised the discretion reposed in him.

There was no error, and the judgment of the District Court is affirmed. Affirmed.

1. Evidence 341, 357—Letter from Governor of province in Syria, or copy thereof, tending to show petitioner's birth in Syria, held inadmissible in habeas corpus to prevent deportation (U. S. C. tit. 28, § 661).

Letter from Governor of province in Syria to United States consul general, or copy certified by Department of State under Rev. St. § 882 (U. S. C. tit. 28, § 661), tending to show birth of petitioner in Syria, held inadmissible in habeas corpus proceeding to prevent deporta

tion.

2. Habeas corpus 85(1)-French passport, Issued after order of deportation, held inadmissible to show petitioner's birth in Syria, in habeas corpus to prevent deportation.

French passport, issued by French embassy at Washington to petitioner as Syrian native,

3. Evidence 334(1)—In habeas corpus to prevent deportation, landing certificate taken from Ellis Island records held admissible to show petitioner's birth in Syria.

In habeas corpus to prevent deportation, landing certificate taken from Ellis Island records held admissible to show birth of petitioner in Syria, being competent as official record, kept in due performance of public business, and relevant for petitioner's failure to show passage on another boat.

4. Habeas corpus 113(13)-After vacating judgment dismissing writ of habeas corpus to prevent deportation, for admission of improper evidence, case may be remanded for further hearing (U. S. C. tit. 28, § 461).

Where judgment dismissing writ of habeas corpus to prevent deportation is vacated for admission of improper evidence, case may be remanded for further hearing, in view of Rev. St. § 761 (U. S. C. tit. 28, § 461), provided government introduces further proofs within time to be fixed by court.

Appeal from the District Court of the United States for the Eastern Division of the Northern District of Ohio; Paul Jones, Judge.

Habeas corpus by the United States, on the relation of Elias Esshoc, also known as Leo Isaac, against J. Arthur Fluckey, Inspector in Charge of Immigration at Cleveland, and another, to prevent deportation. From a judgment dismissing the writ, petitioner appeals. Judgment vacated, and case remanded.

J. B. Dworken, of Cleveland, Ohio, for appellant.

Irene Nungesser, Asst. U. S. Atty., of Cleveland, Ohio (A. E. Bernsteen, U. S. Atty., of Cleveland, Ohio, on the brief), for appellees.

Before DENISON and MOORMAN, Circuit Judges, and SIMONS, District Judge.

PER CURIAM. [1, 2] Esshoc brought habeas corpus to prevent his deportation to Syria. His evidence tended to show that he was born in the United States 35 years ago, and had lived here, except for two round trips to the family village in Syria. In order to learn the facts about Esshoc's birth, the Department of Labor requested the Department of State to make inquiries through the consular service. Accordingly, the United States consul general in Syria made inquiry from the Governor of the province of Greater Lebanon, who made inquiry in the family village and was told by the local au

19 F. (2d)-5

thorities there that a man, more or less clearly identified with this Esshoc, had been born in that village. The Governor thereupon reported this result in a letter to the United States consul general, who sent this letteror a copy-to Washington. A copy of this letter, certified by the Department of State under R. S. § 882 (U. S. Code, tit. 28, § 661), was offered and received in evidence. This was erroneous. The statute only gives to such copies the same evidential force the originals would have, and no theory is suggested or occurs to us by which the original could have been admissible. There was also received in evidence a French passport, issued by the French embassy at Washington to Esshoc as a Syrian native; but this was issued after the order of deportation, and to permit that order to be carried out. Obviously it had no evidential force. The error in these matters must be considered prejudicial, because the memorandum of the trial judge shows that he based his conclusion largely upon this class of evidence.

We

[3] We think the so-called "landing certificate" was admissible. This had reference to the landing in the United States in 1909 of a man coming from Syria to Cleveland. We understand the practice to be that at the point of embarkation the steamship company, by analogy to a manifest, makes out a record of many particulars regarding the passenger, as obtained from him or otherwise. Upon landing at Ellis Island, this manifest is delivered to the immigration authorities, and from it and other sources, including the immigrant's statements, they make up their landing certificate which is furnished to the immigrant. It was a certified copy of this manifest or certificate, taken from the Ellis Island records and duly certified by the authorities there, which was offered in evidence. think it is entitled to be classified as an official record kept in the due performance of public business, so far as to be competent as evidence, and in this instance it tends to show that the passenger stated he was born in Syria. We think, also, that, taken in connection with Esshoc's statement that he made a return trip from Syria about that time, his failure to identify his return trip with any other boat or passage than the one covered by the certificate, and some inherent indication of identity, there was enough to make it relevant, in spite of other matters in the certificate indicating nonidentity. It is obvious however, that, in connection with a thorough explanation, it may turn out not to be of much weight. We are told, in argument that this name is so common, and that there is

William V. Lee and Edward L. Katzenbach, both of Trenton, N. J., for plaintiff in

error.

It follows that the decree dismissing the bill was erroneous, and there should be an order giving to the bill its proper status as an amended bill, and subsequent procedure should go accordingly. It follows, also, that the effect of the failure to file a disclaimer any more promptly becomes a moot question, since the original plaintiff and these defendants, and any one in privity with plaintiff, are all bound by the existing decree for accounting.

The situation of which appellant complains was so far produced by its own failures in procedure that no costs of this appeal will be awarded.

LEHIGH & N. E. R. Co. v. SMALE. Circuit Court of Appeals, Third Circuit. April 27, 1927.

No. 3582.

1. Master and servant 286(12)—Whether locomotive pilot beam handhold had minimum clear length required held for jury.

In brakeman's action for injury caused by pilot beam handhold on locomotive not complying with order of Interstate Commerce Commission, question whether combination hand-, hold and flagstaff had minimum clear length required held properly submitted to jury.

2. Appeal and error 1050(2)—In brakeman's action for injury from defective pilot beam handhold, admission of evidence as to uncoupling lever, though unnecessary, held harmless.

In brakeman's action for injury caused by pilot beam handhold on locomotive not complying with order of Interstate Commerce Commission, admission of evidence as to uncoupling lever, which may be deemed handhold in certain cases, though unnecessary, since there was no contention that it was such an engine in question, held not harmful to defendant.

In Error to the District Court of the United States for the District of New Jersey; Joseph L. Bodine, Judge.

Action by Russell R. Smale against the Lehigh & New England Railroad Company.

Charles A. Ludlow and Ralph W. Botham, both of New York City, for defendant in

error.

Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.

BUFFINGTON, Circuit Judge. While Russell R. Smale, hereafter called plaintiff, was engaged as a brakeman in the interstate commerce work of the Lehigh & New England Railroad Company, hereafter called defendant, he was injured by reason, as alleged, of the appliances of the defendant on one of its locomotives, which failed to comply with the requirements of the Interstate Commerce Commission. He recovered a verdict, and on entry of judgment this writ of error was sued out by defendant.

Briefly stated, the pertinent facts are these: While the train was in motion, Smale, who was head brakeman, having in view aiding in a train movement in the line of his duty, went to the front of the engine in question and descended on steps fastened to the crossbeam at the front of the engine. In order to do so safely, it is obvious that he required support of handholds, and the requirements of the Interstate Commerce Commission in that regard are quoted in the margin.1

[1] In compliance with its statutory duty, the railroad placed a wrought iron handhold of the proper thickness securely bolted with a crossbeam; but it was alleged, and around this the controversy centers, that such handhold did not have the clear minimum clearance length of the 14 inches required, in that at its top there was placed a flag-holding device, which presented a split at its outer end. When Smale, in endeavoring to make the descent, reached for this handhold, he placed his hand on the top of the handhold and over

1 Pilot beam handholds: Number: Two (2). Dimensions: Minimum diameter, five-eighths (%) of an inch, wrought iron or steel. Minimum clear length, fourteen (14), preferably sixteen (16), inches. Minimum clearance, two and one-half (22) inches. Location: One (1) on each end of buffer beam. (If uncoupling lever extends across front end of locomotive to

within eight [8] inches of end of buffer beam,

and is seven-eighths [%] of an inch or more in diameter, securely fastened, with a clearance of two and one-half [22] inches, it is a handhandholds shall be securely fastened with bolts Pilot beam hold). Manner of application: or rivets."

this flag-holding device, and his glove caught in the split. When he let loose the detention of the glove pulled him around, and he fell, and his leg was run over. It was contended that the distance between the lower part of this flag-holding device and the base of the stem was less than the minimum clear length of 14 inches provided by the order, and whether this upright gave the statutory clearance was left by the court to the jury to decide. In view of the fact, as we see it, that the court itself well have said that such clearance was not provided, we find no error in the court's action in submitting it to the jury, or the jury's finding.

[2] It is sought by the railroad to show er. ror by reason of evidence given in reference to the uncoupling lever which was located on the front of the buffer beam of the engine. We fail to see how that can affect the case. While the statutory requirement provides that in certain cases an uncoupling lever may be deemed to be a handhold, there was no contention made in the answer of the defendant that the uncoupling lever on this engine was a handhold, or a compliance with the statute; but the answer assumed that the handhold in controversy was the one upor which the plaintiff's glove caught. As we view the issues formed by the pleadings, the plaintiff needlessly undertook to give evidence showing that the uncoupling lever did not comply with the statute. But no such contention was made by the defendant, and indeed it was clear that the uncoupling lever on this engine did not comply with the requirements of the statute, because the upright which the plaintiff caught hold of stood in the way of his reaching the uncoup. ling lever, and physically prevented it from being used as a grabiron.

This needless attempt of the plaintiff in no way harmed the defendant, nor affected the real issue in the case, which was whether the grabiron plaintiff took hold of, and which brought about his injury, complied with the statute. This issue, and it alone, the court submitted to the jury in these words: "It was a combination handhold and flagstaff. There is testimony that it was equipment used on the New Jersey Central Railroad and on the Delaware, Lackawanna & Western Railroad, as well as on the Lehigh & New England Railroad, the defendant in this suit. If the grabiron complied with the regulations of the Interstate Commerce Commission, that is the end of your deliberations, and you would find a verdict for the defendant."

Finding no error, the judgment below is affirmed.

1.

KEYSTONE DAIRY CO. v. NEW YORK LIFE INS. CO. (two cases).

Circuit Court of Appeals, Third Circuit. April 27, 1927.

Nos. 3574, 3575.

Cancellation of instruments

13-Equity

has jurisdiction to cancel life policy for fraud, where beneficiary fails to sue within contestàble period, which is not defeated by beneficiary's subsequent suit at law.

Where beneficiary failed to sue on policy within period of contestability, thereby depriving insurer of defense of fraud available at law, and forcing it, just before expiration of period of contestability, to sue in equity for cancellation, held, equity had jurisdiction, which was not defeated by beneficiary's subsequent suit at law after expiration of period.

2. Action 69-Action on policy after expiration of contestable period held properly stayed pending equity suit to cancel policy.

Where insurer sued in equity, before expiration of period of contestability, to cancel life policy for fraud in procurement, law action on policy, instituted after expiration of period of contestability, was properly stayed till final determination of equity suit, since beneficiary prevented insurer from making defense in law action by delay.

Fallon & Fallon, of Hoboken, N. J. (William Mayo Atkinson, of Hoboken, N. J., of counsel), for Keystone Dairy Co.

Lindabury, Depue & Faulks, of Newark, N. J. (J. Edward Ashmead, of Newark, N. J., of counsel), for New York Life Ins. Co.

Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.

BUFFINGTON, Circuit Judge. On March 28, 1924, the New York Life Insurance Company, hereafter called the insurance company, issued three policies to the Keystone Dairy Company, hereafter called the dairy company, on the life of its treasurer, William M. Kroog, which policies provided they were incontestable after 2 years from their issue date. Mr. Kroog died on October 15, 1924. During the remaining 17 months which intervened between the death of the insured and the expiration of the con