held not reversible error.-De. Bellis v. U. S., 22 F. (2d) 948.

(E) Assignment of Errors and Briefs. ~1129(1) (U.S.C.C.A.Iowa) Objection that evidence before grand jury did not sustain indictment, not raised in trial court nor by assignment of error, will not be considered on review.-Blain v. U. S., 22 F.(2d) 393.

(G) Review.

1134(10) (U.S.C.C.A.Mass.) Facts and reasons stated in affidavit of prejudice against judge are to be considered by reviewing court (Jud. Code, § 21 [28 USCA § 25]).-Craven v. U. S., 22 F. (2d) 605.

1136 (U.S.C.C.A.Wash.) One of several defendants in liquor case held not prejudiced because jury failed to convict for sales by others, as it might have done (National Prohibition Act [27 USCA]).—Samich v. U. S., 22 F. (2d) 672.

1151 (U.S.C.C.A.Va.) Motion for continuance is within sound discretion of trial judge, whose action is not reviewable without evidence of abuse.-Neal v. U. S., 22 F.(2d) 52.

1159(2) (U.S.C.C.A.Okl.) Appellate court will not ordinarily review question of sufficiency of evidence.-McCannon v. U. S., 22 F. (2d) 806.

1167(2) (U.S.C.C.A.Okl.) Where sentences ran concurrently after conviction on several counts, insufficiency of some of counts was immaterial.-Lewis v. U. S., 22 F.(2d) 760.

1168(1) (U.S.C.C.A.Tenn.) Judgment will not be reversed because one charge is not supported by evidence, if another is, and sentence is not greater than might be imposed on that alone.-Clift v. U. S., 22 F. (2d) 549.

1168(1) (U.S.C.C.A.Wis.) Evidence introduced under count on which defendant was acquitted held not prejudicial, though considered under another count.-Brown v. U. S., 22 F. (2d) 293.

1169(5) (U.S.C.C.A.Idaho) In prosecution for receiving money, stolen from mails, admitting copies of indictments against thief held harmless, in view of court's remarks (Penal Code, § 194 [18 USCA § 317]).-Johnston v. U. S., 22 F.(2d) 1. ·

1172 (2) (U.S.C.C.A.N.Y.) Instruction that testimony of defendant was to be considered as that of other witnesses held not prejudicial to codefendant, not testifying.-Swenzel v. U. S., 22 F. (2d) 280.

1173(2) (U.S.C.C.A.N.Y.) Refusal of requested instruction that defendant's failure to testify created no presumption against him held not prejudicial.-Swenzel v. U. S., 22 F. (2d) 280.

1174(5) (U.S.C.C.A.Cal.) Court's asking jury whether it was about evenly divided held error, requiring reversal.-Jordan v. U. S., 22 F. (2d) 966.

1186(1) (U.S.C.C.A.Ky.) Death of trial stenographer and inability to read his notes held, under facts shown, not to require reversal. -Dowling v. U. S., 22 F.(2d) 364.

XVII. PUNISHMENT AND PREVENTION OF CRIME.

1209 (U.S.C.C.A.III.) Sentence on each of two counts held for different offenses, and not to constitute punishment twice for same offense. -De Bellis v. U. S., 22 F. (2d) 948.

1218 (U.S.D.C.Ga.) Federal statutes authorizing imprisonment of federal prisoners in state institutions have not been superseded, and federal sentence in state penitentiary was lawful (18 USCA § 693 et seq.; Cr. Code S. C. 1922, 954).-Harrison v. Snook, 22 F.(2d) 169.

CUSTOMS AND USAGES.

(U.S.D.C.Mass.) "Custom" is general understanding, on which persons trade in port, market, or commodity.-Pendleton Bros. v. Northern Coal Co., 22 F. (2d) 317.

10 (U.S.D.C.Mass.) No custom short of prescriptive right can restrict owner in using his own realty.-Pendleton Bros. v. Northern Coal Co., 22 F. (2d) 317.

13 (U.S.D.C.Mass.) "Custom" is unexpressed contract term.-Pendleton Bros. v. Northern Coal Co., 22 F. (2d) 317.

CUSTOMS DUTIES.

IV. ENTRY AND APPRAISAL OF GOODS, BONDS. AND WAREHOUSES.

86 (U.S.C.C.A.Va.) Collector of customs had authority to require master of foreign vessel entering port in distress to furnish bond before clearance (Tariff Act 1922, §§ 435, 441, 442 [19 USCA §§ 245, 251, 252]; Customs Regulations, § 1118).-Eagle Indemnity Co. v. U. S., 22 F. (2d) 388, affirming judgment (D. C.) U. S. v. Eagle Indemnity Co., 18 F. (2d) 135.

Condition of bond furnished by master of foreign vessel entering port in distress, requiring proper delivery of goods, held one of forfeiture.-Id.

Violation of agreement in bond executed by master of foreign vessel entering port in distress to deliver goods at foreign port completed forfeiture.-Id.

Government may recover full penalty of bond furnished by master of foreign vessel entering port in distress, on proving failure to furnish required certificate.-Id.

Affidavit on information and belief that foreign vessel entering port in distress was forbidden to land cargo in accordance with agreement of bond held insufficient.-Id.

VII. VIOLATIONS OF CUSTOMS LAWS.

133(6) (U.S.C.C.A.Mass.) Evidence held to show probable cause for suit to forfeit automobile used in carrying smuggled liquor (19 USCA §§ 482, 483; Tariff Act 1922, § 615 [19 USCA 5251).-General Motors Acceptance Corporation v. U. S., 22 F. (2d) 109.

DAMAGES.

I. NATURE AND GROUNDS IN GENERAL. (U.S.C.C.A.N.C.) Damages are allowed for breach of contract as compensation.Druckman v. Forsyth Furniture Lines, 22 F. (2d) 59.

III. GROUNDS AND SUBJECTS OF COMPENSATORY DAMAGES.

(A) Direct or Remote, Contingent, or Prospective Consequences or Losses,

18 (U.S.C.C.A.Cal.) Generally remote, uncertain, and speculative damages are not recoverable.-Julian Petroleum Corporation v. Courtney Petroleum Co., 22 F. (2d) 360.

(C) Interest, Costs, and Expenses of Litigation.

68 (U.S.C.C.A.Ga.) Instruction that interest on damages found for breach might be added to make up the verdict held not erroneous. Standard Growers' Exchange v. Hooks, 22 F. (2d) 599.

VIII. PLEADING, EVIDENCE, AND AS

SESSMENT.

(A) Pleading.

145 (U.S.C.C.A.Idaho) Testimony as to impairment of earning capacity resulting from injury held admissible, without allegation of special damages.-Fidelity & Deposit Co. of Maryland v. Bardsley, 22 F. (2d) 603.

12 (U.S.D.C.Tenn.) Deposition of witness living over 100 miles from trial of copyright infringement suit and exhibit attached held admissible (28 USCA § 639; equity rules 46, 47). -M. Witmark & Sons v. Calloway, 22 F. (2d) 412.

50 (U.S.C.C.A.Ohio) That deposition is taken before notary other than named in notice does not render it inadmissible (28 USCA § 639).-Nieman v. Plough Chemical Co., 22 F. (2d) 73.

56(1) (U.S.C.C.A.Ohio) Notice of taking deposition need not state reason for such taking (28 USCA § 639).-Nieman v. Plough Chemical Co., 22 F. (2d) 73.

69 (U.S.C.C.A.Ohio) Depositions taken on two successive days held not inadmissible, though not subscribed and sworn to until third day (28 USCA § 639)-Nieman v. Plough Chemical Co., 22 F. (2d) 73.

76 (U.S.C.C.A.Ohio) Deposition held not inadmissible because it did not have final certificate required by statute attached to it when forwarded to clerk (28 USCA §§ 639, 641).Nieman v. Plough Chemical Co., 22 F. (2d) 73.

78 (U.S.C.C.A.Ohio) Irregularity in manner of transmitting depositions to court held such as should be disregarded under statute (Judicial Code, § 269 [28 USCA § 391]).-Nieman v. Plough Chemical Co., 22 F.(2d) 73.

DESCENT AND DISTRIBUTION.

I. NATURE AND COURSE IN GENERAL.

14 (App.D.C.) Ancestral real estate of wife descends to surviving brother, in absence of will (Code, § 945).-Thomas v. Young, 22 F. (2d) 588.

DISMISSAL AND NONSUIT.

II. INVOLUNTARY.

60(2) (U.S.D.C.Cal.) Cause at issue for more than five years dismissed on motion for want of prosecution.-U. S. Shipping Board Emergency Fleet Corporation v. Bank Line Transport & Trading Co., 22 F. (2d) 430.

71 (U.S.D.C.Cal.) Injury from delay in prosecution of suit may be shown or inferred. -U. S. Shipping Board Emergency Fleet Cor

75 (U.S.C.C.A.N.M.) Making dismissal without prejudice held discretionary where suit was pending 18 months and apparently complainant's case could not be bettered.-Board of Com'rs of San Miguel County, N. M., v. Cowan, 22 F. (2d) 409.

(B) Remedy at Law and Multiplicity of Suits. 44 (U.S.C.C.A.Alaska) Suit by administrator de bonis non to recover assets fraudulently procured held within federal equity court's jurisdiction.-Davis v. Hutchinson, 22 F. (2d) 380.

Equity court may assist probate court, without invading its jurisdiction, by deciding issue or deferring determination until probate court exhausts its powers.-Id.

Rule that equity court may assist probate court held particularly applicable in Alaska, where commissioner primarily exercising probate jurisdiction is appointed by presiding 1595 [35 Stat. 839, § 2 (Comp. St. § 3504); judge (Comp. Laws Alaska 1913, §§ 363, 366, 31 Stat. 323, § 6 (48 USCA §§ 104, 108); 31 Stat. 452, § 763]; 31 Stat. 462).-Id.

46 (U.S.C.C.A.Cal.) Right to compel action at law by another in which complainant's rights may be fully determined will exclude jurisdiction 518, modifying decree (D. C.) 21 F. (2d) 696. in equity. Thompson v. Schwaebe, 22 F.(2d)

(C) Principles and Maxims of Equity.

57 (U.S.C.C.A.Va.) Seller retaining title under executed contract held entitled to foreclosure on buyer's failure to perform, under maxim regarding as done that which should have been done.-Virginia Shipbuilding Corporation v. U. S., 22 F. (2d) 38, affirming decree (D. C.) Same v. U. S. Shipping Board Emergency Fleet Corporation, 292 F. 440.

Written executory contract to convey prop-. erty as security creates equitable lien, under maxim that equity regards as done what ought to be done.-Id.

Equity regards purchaser of realty or chattels as real owner, subject to liability for unpaid price, and seller as holding legal title as security.-Id.

59 (U.S.C.C.A.S.C.) Parties will be left where they are found in case equities are equal. -Atlantic Life Ins. Co. v. Rowland, 22 F. (2d) 126.

II. LACHES AND STALE DEMANDS.

67 (U.S.C.C.A.S.C.) Delay or negligence, defeating recovery, depends on circumstances

of each case.-Atlantic Life Ins. Co. v. Rowland. 22 F. (2d) 126.

69 (U.S.C.C.A.S.C.) Complainant in equity, to relieve himself of charges of laches, must have been diligent.-Atlantic Life Ins. Co. v. Rowland, 22 F. (2d) 126.

87(1) (U.S.D.C.Pa.) Doctrine of "laches" is applied only when it should be, but equity accepts judgment of Legislature in enacting statute of limitations.-Christianssand Shipping Co. v. Marshall, 22 F. (2d) 192.

III. PARTIES AND PROCESS.

94 (U.S.C.C.A.Neb.) Suit in equity will not be determined without presence of parties

That Circuit Court of Appeals passed on question whether moneys due incompetent Indian were restricted funds was not error on face of decree, justifying bill of review.--Id.

Bill of review for error of law on face of

ESTOPPEL.

1. BY RECORD.

by

3(3) (U.S.D.C.N.Y.) Cross-libelant, pleading libelant's corporate existence after voluntary dissolution, held not estopped from thereafter denying its corporate status.American Transp. Co. v. Swift & Co., 22 F. (2d) 457.

III. EQUITABLE ESTOPPEL.

(A) Nature and Essentials in General.

58 (U.S.C.C.A.N.Y.) Persons claiming estoppel must show they were misled to their prejudice.-Fisher v. Clark, 22 F. (2d) 295.

58 (U.S.C.C.A.N.Y.) Estoppel can be asserted only by one acting to his prejudice on false statement.-In re Super Trading Co., 22 F. (2d) 480.

62(2) (App.D.C.) United States held not estopped from suing to set aside naturalization certificate by order of naturalization and appearance in naturalization proceeding (8 USCA §§ 399, 405).-U. S. v. Javier, 22 F. (2d) 879. (B) Grounds of Estoppel.

83 (5) (U.S.D.C.Ky.) Bankrupts and trustee held estopped by their representations to deny genuineness of note as against purchaser. -In re Varney, 22 F. (2d) 230.

88 (1) (U.S.D.C.Ky.) Bankrupts held estopped to deny genuineness of two notes, where bank, after buying one, but before buying other, submitted them to bankrupts, who admitted they were genuine. In re Varney, 22 F. (2d) 230.

447 (2) (U.S.C.C.A.Okl.) Bill of review for discovery of new matter will not be allowed, though guardian of incompetent, not recognized in litigation, was subsequently declared lawful guardian.-Swift v. Parmenter, 22 F. (2d) 142.

defective construction of bridge pier held not precluded by final acceptance of work and payment therefor without knowledge of defects.-United Const. Co. v. Haverhill, N. H., 22 F. (2d) 256.

EVIDENCE.

I. JUDICIAL NOTICE.

451 (U.S.C.C.A.Okl.) Petition for leave to file bill of review should ask leave to file in District Court.-Swift v. Parmenter, 22 F. (2d) 142.

455 (U.S.C.C.A.Okl.) Allowance of bill of review for newly discovered evidence is discretionary.-Swift v. Parmenter, 22 F. (2d) 142.

456 (U.S.C.C.A.Ga.) Leave to apply to trial court for rehearing will not be granted, except on showing which would probably induce different decision.-Allis-Chalmers Mfg. Co. v. Columbus Electric & Power Co., 22 F. (2d) 737, denying petition to apply in District Court for rehearing 19 F. (2d) 860.

Leave to apply to trial court for rehearing for newly discovered evidence will be denied, because available at trial.-Id.

463 (U.S.C.C.A.Ga.) Petitioners for leave to apply to trial court for rehearing have burden of proving materiality of, and diligence in, discovering newly discovered evidence.-AllisChalmers Mfg. Co. v. Columbus Electric & Power Co., 22 F.(2d) 737, denying petition to apply in District Court for rehearing 19 F. (2d) 860.

EQUITY RULES.

See Court Rules Cited or Construed.

ESCHEAT.

8(1) (U.S.C.C.A.Alaska) Alaska statute requiring banks to report escheated deposits held not invalid, as interfering with business of national banks (Laws Alaska 1921, c. 40. § 9). Territory of Alaska v. First Nat. Bank, 22 F. (2d) 377.

14 (U.S.C.C.A.Ala.) It is matter of general information that weapon fired against human body leaves powder marks only in and immediately around wound.-New York Life Ins. Co. v. Alman, 22 F. (2d) 98.

21 (U.S.D.C.Wash.) Court cannot take judicial notice of foreign customs, and must apply local customs to controverted fact, in absence of proof.-Ex parte Hing, 22 F.(2d) 554.

29 (U.S.C.C.A.Wyo.) Circuit Court of Appeals takes judicial notice of compensation laws of state in which cause of action arose.-Epperson v. Midwest Refining Co., 22 F.(2d) 622.

37 (U.S.D.C.Wash.) Court cannot take judicial notice of foreign laws, and must apply local laws to controverted fact, in absence of proof.-Ex parte Hing, 22 F. (2d) 554.

48 (U.S.D.C.Idaho) Courts take judicial notice that Commissioner of Internal Revenue will not issue permit for importation of liquor into bone dry state.-U. S. v. One Oldsmobile Coupé, 22 F. (2d) 441.

48 (U.S.D.C.N.J.) Courts Judicially notice reports of executive departments.-Tolfree v. Wetzler, 22 F. (2d) 214.

Courts judicially notice Patent Office records. -Id.

51 (U.S.D.C.N.J.) Court may resort to or obtain information of scientific facts from any source of knowledge deemed helpful.-Tolfree v. Wetzler, 22 F. (2d) 214.

IV. RELEVANCY, MATERIALITY, AND
COMPETENCY IN GENERAL.

(B) Res Gestæ.

118 (U.S.C.C.A.Va.) What is admissible as res gestæ is discretionary with trial judge.

and valid extension thereof, but not thereafter. -Great Northern Life Ins. Co. v. Dixon, 22 F. (2d) 655.

38 (U.S.C.C.A.S.D.) Court rule relative to bill of exceptions held to extend term only to extent that exact compliance requires (District Court rule 49).-Farmers' Union Grain Co. v. Hallet & Carey Co.. 22 F. (2d) 796, denying rehearing in 21 F. (2d) 42.

40 (7) (U.S.C.C.A.S.D.) District Court's jurisdiction to settle bill of exceptions cannot be conferred by acts of parties.-Farmers' Union Grain Co. v. Hallet & Carey Co., 22 F. (2d) 796, denying rehearing in 21 F. (2d) 42.

EXECUTORS AND ADMINISTRATORS. IV. COLLECTION AND MANAGEMENT OF ESTATE.

(A) In General.

120(1) (U.S.C.C.A.Alaska) Administrator de bonis non held competent to sue third parties to recover assets of estate fraudulently

procured from former administrator (Comp. Laws Alaska 1913, §§ 1619, 1620, 1622, 1624 [Act Cong. June 6, 1900. 31 Stat. 457]).-Davis v. Hutchinson, 22 F. (2d) 380.

VII. DISTRIBUTION OF ESTATE. 294 (U.S.D.C.Minn.) Indebtedness of bankrupt to estate cannot be set off against interest as heir in real estate.-In re Von Ruden, 22 F. (2d) 860.

tradition proceeding.-Blevins v. Snyder, 22 F. (2d) 876.

32 (App.D.C.) Indictment for larceny and for obtaining signature that would be a forgery held sufficient to support extradition proceedings.-Hill v. Dorsey, 22 F. (2d) 1003.

34 (App.D.C.) Requisition held properly issued by lawfully constituted executive authority of demanding state.-Hill v. Dorsey, 22 F.(2d) 1003.

39 (App.D.C.) In extradition proceeding, court's inquiry is limited to determining whether there is probable cause for believing accused guilty, and whether removal for trial is justified.-Blevins v. Snyder, 22 F. (2d) 876.

In extradition proceeding, indictment is only evidence to be considered as tending to establish commission of offense.-Id.

Whether accused acted in self-defense in commission of offense charged cannot be determined in extradition proceeding.-Id.

That indictment was part of scheme or conspiracy to collect debt is no defense to extradition proceeding.-Id.

turning indictment in demanding state was That accused was colored, and that jury recomposed of white men only, held no defense to extradition proceeding.-Id.

That accused, a colored man, might not be accorded fair trial in demanding state, held no defense to extradition proceedings.-Id.

FACTORS.

42 (U.S.C.C.A.Tex.) In suit for balance due on turkeys defendant sold for plaintiff on commission basis, defendant claiming it had accounted, evidence held for jury.-Armour & Co. v. Bassel Bros., 22 F.(2d) 728.

FIXTURES.

(U.S.C.C.A.Ohio) Personalty becomes fixture on annexation to realty, application to use to which realty is appropriated, and intention by annexing party to permanently attach it to freehold.-Whitaker-Glessner Co. v. Ohio Savings Bank & Trust Co., 22 F.(2d) 773.

4 (U.S.C.C.A.Ohio) Intention of party annexing chattel to realty, removable without injury to either, is to be determined from manner of annexation, uses and circumstances.Whitaker-Glessner Co. v. Ohio Savings Bank & Trust Co., 22 F. (2d) 773.

18(5) (U.S.C.C.A.Ohio) Machinery in canning factory, bolted to floor, but removable without injury to machinery or realty, held fixture as between company and mortgagee.Whitaker-Glessner Co. v. Ohio Savings Bank & Trust Co., 22 F.(2d) 773.

FRAUD.

1. DECEPTION CONSTITUTING FRAUD, AND LIABILITY THEREFOR.

13(2) (U.S.C.C.A.N.C.) Purchasers of stock in manufacturing company, not relying on seller's innocent representation, cannot recover amount improperly carried as account receivable.-Erwin v. Jackson, 22 F. (2d) 56.

20 (U.S.C.C.A.N.C.) Purchasers concluding transaction after knowledge amounts were improperly carried as accounts receivable waived right to hold seller liable.-Erwin v. Jackson, 22 F. (2d) 56.

FRAUDS, STATUTE OF.

VI. REAL PROPERTY AND ESTATES AND INTERESTS THEREIN.

56(1) (U.S.C.C.A.Mass.) That agreement to hold realty as security was not in writing did not make it invalid.-Crosby v. Packer, 22 F. (2d) 611, affirming decree (D. C.) Crosby v. Sproul, 17 F. (2d) 325.