grieved, will regard that as done which should have been done, will treat the ships as the property of the shipbuilding corporation with legal title in the government to secure the indebtedness due it, and will decree foreclosure in order that the proceeds of the ships may be applied upon the debt. [6] We do not find in the books any case exactly similar to the case at bar; but we find many cases which apply the equitable principles which are controlling here. Thus it is well settled that an express executory contract in writing, whereby a party promises to convey, assign, or transfer property as security for a debt or other obligation, creates an equitable lien upon the property, under the maximum that equity regards as done that which ought to be done. Pomeroy's Equity Jurisprudence, vol. 3, § 1235; Ingersoll v. Coram, 211 U. S. 335, 368, 29 S. Ct. 92, 53 L. Ed. 208; Walker v. Brown, 165 U. S. 654, 664, 17 S. Ct. 453, 41 L. Ed. 865; Ketchum v. St. Louis, 101 U. S. 306, 316, 25 L. Ed. 999. In this case, therefore, the agreement to execute mortgages upon the ships delivered to the shipbuilding corporation would have given rise to a lien which a court of equity would have enforced even had the title not been retained as security. Certainly the government is not to be held to be in a worse position because the legal title has been retained pending the completion of construction and the execution of bills of sale and mortgages in accordance with the contract. [7, 8] It is also well settled that, in the application of the equitable maxim above stated, a court of equity will deal with even an executory contract for the sale of land or chattels in a very different manner from a court of law, and, in a proper case, will regard the purchaser as the real owner of the property subject to liability for the unpaid price, and the vendor or seller as holding the legal title merely as security. Pomeroy's Equity Jurisprudence, vol. 1, § 368; Rexford v. Southern Woodland Co. (C. C. A. 4th) 225 F. 1022; s. c. (D. C.) 208 F. 295; Lewis v. Hawkins, 23 Wall. 119, 23 L. Ed. 113. This will be done, of course, only in those cases where equity will decree specific performance of a contract, and is, in reality, an exercise of the power to compel specific performance in order that more perfect and complete justice may be done. See opinion of Judge Connor in Rexford v. Southern Woodland Co., supra (D. C.) 208 F. at 306. And, although ordinarily specific performance will not be decreed of a contract for the sale of chattels, relief is denied in such cases solely because the remedy at law is deemed adequate. Where the remedy at law is inadequate, specific performance will be decreed, and such relief has been granted with respect to a contract for the sale of vessels. Clark v. Flint, 22 Pick. (Mass.) 231, 33 Am. Dec. 733; 25 R. C. L. 295. The peculiar circumstances of this case-the fact that the ships to be conveyed were being constructed by the shipbuilding corporation and were left in its possession; that the conveyance was to be in satisfaction of existing controversies; that the price agreed was merely a basis for determining the first payments and the amount of the mortgages to be given for funding the existing indebtedness; and that the mortgages were to be executed, not in reality for the purchase price at all, but as a means of funding the indebtedness-all of these make the case one where the remedy at law would not meet the situation and where the remedies which only equity can administer are peculiarly appropriate. We think, therefore, that the learned Judge in the court below was correct in holding that the equitable ownership of the vessels was in the shipbuilding corporation, or its transferee, the transport company, with legal title in the United States as security for the amount due, even though the bills of sale for the vessels and the mortgages back had not been executed; and that he properly entered the decree of foreclosure under which the vessels were sold, as there can be no controversy as to the fact that the shipbuilding corporation and the transport company were in default at the time. And we do not think that this decision conflicts with what was decided by the Circuit Court of Appeals of the Third Circuit in U. S. v. Henderson, 286 F. 794. That was a suit against the United States under the Suits in Admiralty Act (46 USCA §§ 741-752 [Comp. St. §§ 12511⁄4-1251]) to recover for supplies furnished to some of the vessels involved in this suit while they were being operated by the transport company. The United States appeared as the registered owner of the vessels, but the defense was made that the transport company was operating them, not for the United States, but for the shipbuilding corporation. In holding the government liable, the court was careful to state that the case before it was not an action between the United States and the shipbuilding corporation or the transport company arising out of the contracts between them, but that it had been instituted by strangers who were wholly uninformed at the time of furnishing the supplies as to the situation existing between the parties. The court pointed out that the statute (Act of June 23, 1910, 36 Stat. 604 [Comp. St. §§ 22 F.(2d) 38 7783-7787], as re-enacted in the Merchant Marine Act of June 5, 1920, 41 Stat. 988 [46 USCA §§ 971-975; Comp. St. 88 81464000-814649]), upon which libelants relied, presumes the owner's authority in one intrusted with a ship to procure supplies on the pledge of the ship, unless the owner has withheld his authority and the furnisher knows this or by due diligence could have ascertained it; that there was nothing in the agency agreement under which the transport company was operating the vessel which restricted its authority to secure supplies on the credit of the vessel; and that the restriction in the standard form of purchase agreement which was to be executed when the vessel was transferred pursuant to the contract of July 19, 1920, was not applicable because the vessel had not been transferred nor the purchase agreement executed. The decision, in short, was based on the fact that there was nothing in the completed transactions between the government and the shipbuilding corporation or the transport company which withheld from the transport company the right to purchase supplies on the credit of the vessels. While the contract of July 19, 1920, was referred to as an executory contract to sell, this expression must be construed in the light of the question before the court. The court in that case did not have occasion to consider the effect of the contracts of September 25, 1919, and July 19, 1920, on the obligation of the United States to take and pay for vessels under the original construction contract, nor the nature of the equity in the vessels acquired by the shipbuilding corporation under the later contracts, nor the rights of the parties under the later contracts on default by the shipbuilding corporation, which are the vital matters in the case at bar. In short, the court did not decide that the provisions of the contracts of September 25, 1919, and July 19, 1920, had been nullified by the acts of the parties, and that therefore their rights and liabilities should be determined by the original contract of 1917 for the construction of ships. This brings us to the second question in the case. The shipbuilding corporation contends that there was unreasonable delay in making sale of the ships under foreclosure, and that it is entitled to credit for their value at the time of seizure, which it contends is $185 per dead weight ton, as found by the master to whom the case was referred. As heretofore stated, the vessels were seized in 1921 and were sold in 1923 for the sum of $622,291.71. Judge Waddill held that the shipbuilding corporation was entitled to credit for their value at the time of seizure, but found this value to be $5,235,000. The government has not appealed from this finding, but has consented that the shipbuilding corporation be credited with this amount. That corporation, however, contends for the credit of $185 per dead weight ton, which was allowed it by the master, and this would amount, with interest, to a sum exceeding $20,000,000. The [9] We have carefully considered the evidence bearing upon the value of the ships at the time of seizure, and we think that the finding of Judge Waddill with respect to this matter is correct and gives to the shipbuilding corporation all of the credit to which it is entitled under any aspect of the case. The finding of the master seems to have been based upon the asking price demanded by the Shipping Board for its vessels; but this asking price was far above their market value and seems not to have been reduced merely because the members of the Shipping Board thought they were without authority to act, due to the fact that the terms of a number of the members had expired and the Senate had failed to confirm the appointment of their successors. finding of Judge Waddill, on the other hand, was based upon testimony as to market value which was practically uncontradicted. It is settled that we will not reverse a finding of the District Court having support in the evidence unless we think that the Judge has misapprehended the evidence or gone against the clear weight thereof, or, in other words, unless we think that his finding was clearly wrong. Wolf Mineral Process Corporation v. Minerals Separation North American Corporation (C. C. A.) 18 F. (2d) 483; International Organization, United Mine Workers of America, v. Red Jacket Coal & Coke Co. et al. (C. C. A.) 18 F. (2d) 839. But, without regard to this rule, we are satisfied that upon the evidence the finding made by Judge Waddill was correct. [10] Because of the decline in the value of vessels between September, 1919, and May, 1921, a great loss was sustained in connection with the ships which are the subjectmatter of the contracts under consideration. It is unfortunate that this loss must fall upon any one, but there would seem to be no question that in equity and good conscience, as well as in law, it should be borne by the shipbuilding corporation, who when times were prosperous and the contract seemed advantageous took over the government's interest in the vessels upon an agreement to repay merely the amount which had been advanced for their construction. The fact that prices have since declined furnishes no excuse for releasing that corporation from its contract. As was well said by Judge Waddill in the court below ([D. C.] 292 F. 453): "The fact that the Virginia Company and those acting with it were anxious to acquire the ships at the time they were purchased by them, and sold and transferred to C. W. Morse & Co., Inc., who in turn assigned them to the Transport Company, and now wish to be relieved from such ownership at a time when the ships have become almost worthless, and fall back to the former position of construction contractor under the first contract of December 7, 1917, instead of that of purchaser under the adjustment agreement, is only too apparent. To have the government make good to the Virginia company, and those claiming under it, the profits that would have been earned under the construc tion contract, and relieve them from their liability as purchasers, and return to them the advances made by the Virginia company on the purchase of ships, would be a most desirable position to occupy, but in its result would be very unfair to the government. If the Virginia company, C. W. Morse & Co., Inc., and the Transport Company, as to the purchase of the ships in question one from the other, are not estopped from now asserting that they are neither purchasers nor owners of the property, they should at least not be allowed to visit their losses upon the government, arising from what has developed to be an undesirable contract of purchase on their part." A motion to dismiss the appeal was made and argued at the same time as the case on the merits; but, as we have reached the conclusion that the decree should be affirmed on the merits, and as the result is the same so far as the parties are concerned, we deem it unnecessary to discuss the procedural questions raised by this motion. The decree of the District Court is affirmed. Affirmed. NEAL v. UNITED STATES. Circuit Court of Appeals, Fourth Circuit. October 18, 1927. No. 2619. 1: Criminal law 586, 1151-Motion for continuance is within sound discretion of trial judge, whose action is not reviewable without evidence of abuse, Motion for continuance constitutes a matter whose action thereon is not subject to review, in absence of clear evidence of abuse. 2. Criminal law 589(1)-Refusal of continu. ance because of mistrial at same term of court held not abuse of discretion (National Prohibition Act [27 USCA]). Refusal of continuance in prosecution for violation of the National Prohibition Act (27 USCA), merely because there had been a mistrial of case at the same term of court, held not to constitute an abuse of discretion. 3. Jury 97(1)-Trial judge should see that jury is fair and impartial, where defendant is put on trial at same term after mistrial. Where, after a mistrial, defendant is put on trial again at the same term, trial judge should be very careful to see that jury obtained is fair and impartial. 4. Jury 131(4)—Trial judge must permit inquiries enabling him to exclude from jury persons who are not "fair and impartial." Though ordinarily question as to whether a juror is "fair and impartial" is a matter addressed to discretion of trial judge, he is bound either to make or to permit such inquiries to be made as will enable him, in exercise of his discretion, to exclude persons who have formed fixed opinions and are not fair and impartial jurors, within contemplation of law. 5. Jury 131 (7)-Refusal to permit Inquiry to ascertain if jurors had formed fixed opinions held erroneous. Refusal of trial judge to permit inquiry of jurors, for purpose of ascertaining whether they had formed fixed opinions as to guilt or innocence of defendant, held erroneous, notwithstanding denial that they had both formed and formed positive opinion on merits, he is incomexpressed opinions, since, in case juror has petent, whether he had expressed such opinion or not. 6. Criminal law 359-Testimony that third person had admitted that he was one who sold liquor held properly excluded (National Prohibition Act [27 USCA]). Prohibition Act (27 USCA), testimony that a In prosecution for violating, the National certain third person had admitted to witness that he was the man who made sales of liquor for which defendant was indicted held properly excluded. In Error to the District Court of the United States for the Western District of Virginia, at Roanoke; Henry Clay, McDowell and Edmund Waddill, Jr., Judges. Isaac Neal was convicted of violating the National Prohibition Act, and he brings error. Reversed and remanded for a new trial. John W. McCauley, of Roanoke, Va., for plaintiff in error. C. E. Gentry, Asst. U. S. Atty., of Charlottesville, Va. (J. C. Shaffer, U. S. Atty., of Roanoke, Va., on the brief), for the Unit ed States. Before PARKER and NORTHCOTT, addressed to sound discretion of trial judge, Circuit Judges, and SOPER, District Judge. 22 F.(2d) 52 in error was defendant in the court below and will be so designated here. He was convicted of violating the National Prohibition Act (27 USCA), after being twice tried under the same indictment, at the same term of court. On the first of these trials the jury were unable to agree, and a mistrial was ordered. When the case was again called for trial on the following day, defendant object ed to being placed on trial before a jury chosen from the same panel from which the first jury had been selected, and moved for a continuance on that ground. The motion was overruled, and defendant was placed on trial. In selecting the jury for this second trial, exceptions were taken to the refusal of the trial judge to ask certain questions of the prospective jurors on their voir dire, and these exceptions present the principal question before us. PARKER, Circuit Judge. The plaintiff evidence of abuse. Hardy v. U. S., 186 U. S. 224, 22 S. Ct. 889, 46 L. Ed. 1137; Isaacs v. U. S., 159 U. S. 487, 16 S. Ct. 51, 40 L. Ed. 229. And it cannot be said that the refusal of a continuance is an abuse of discretion merely because there has been a mistrial of the case at the same term of court. Although the fact that the case has been once tried at the term, and that jurors not engaged in the trial have probably heard parts of the evidence and arguments and discussions of the case by parties and witnesses in and about the courtroom, is a strong ground for continuance, it is for the trial judge, who has been present and can understand the atmosphere of the trial better than we possibly can in the appellate court, to determine whether under all the circumstances it is fairer to both sides to try the case again at the same term or to continue it. [3, 4] But where, after a mistrial, the defendant, as in this case, is put on trial again at the same term, we think that the trial judge should be very careful to see that the jury obtained is fair and impartial. Jurors who have heard a part of the evidence in a former trial, who have listened to the arguments of counsel, and who perchance have heard discussions of the case in the corridors of the court building by witnesses or bystanders, are very likely to have formed fixed opinions about the case, or some of the material issues involved in it, and, if chosen, to enter upon their duties with an attitude very different from that which the law contemplates as the attitude of an unbiased juror. And although ordinarily the question as to whether a juror is fair and impartial is a matter addressed to the discretion of the trial judge, we think that the judge is bound either to make or to permit such inquiries to be made as will enable him in the exercise of his discretion to exclude from the jury persons who have formed fixed opinions about the case and are not fair and impartial jurors within the contemplation of the law. This is true in all cases, but it is particularly important where there is a second trial at the same term and at least a part of the jurors called have heard the evidence and have been subjected to the atmosphere of the former trial. When the jurors were called into the box for the purpose of selecting a jury for the second trial, the judge inquired whether any of them were related to the defendant, and whether there was any reason why they could not give both sides a fair trial. Upon both of these questions being answered in the negative, he asked the following question: "Has any of you both formed and expressed an opinion on the guilt or innocence of this defendant, Isaac Neal?" Whereupon one of the jurors answered, "I formed an opinion: I didn't express it." Upon this, counsel for defendant asked that the question be placed in the alternative, and the jurors asked whether they had either formed or expressed an opinion. The court refused this request, and defendant excepted. Counsel for de fendant then requested that the jurors be asked whether they had heard the evidence in the trial of defendant on the day preceding; but this request was also refused, and defendant again excepted. Counsel for defendant thereupon avowed that at least a part of the jurors had heard the evidence in the former trial, and asked that the court inquire of those who had heard the evidence whether it had made such an impression on their minds that evidence would be required to remove it. This the court refused to do, and defendant again excepted, and there is nothing in the record to show that the court made any other or further inquiries of the jurors for the purpose of determining their eligibility. [1,2] The motion for continuance was a matter addressed to the sound discretion of the trial judge, and his action thereon is not subject to review, in the absence of clear [5] In this case we think that the learned District Judge erred in not making further inquiry of the jurors, for the purpose of ascertaining whether any of them had formed fixed opinions as to the guilt or innocence of the defendant. The fact that they denied that they had "both formed and expressed" opinions was not sufficient. The real inquiry was whether the jurors were unbiased and impartial; that is to say, whether they had or had not formed such fixed opinions as to the guilt of the accused that they would not be "indifferent as they stood unsworn," and, although the expression of opinion was a pertinent matter of inquiry, it was important only as showing that the opinion had been formed. If any of the jurors had formed such a positive and decided opinion as to the merits of the case, that he was not an impartial juror, he was incompetent whether he had expressed that opinion or not. Reynolds v. U. S., 98 U. S. 145, 154, 155, 25 L. Ed. 244; Rosencranz v. U. S. (C. C. A. 9th) 155 F. 38; Marshall, C. J., in U. S. v. Burr, 25 Fed. Cas. at pages 50 and 51 (No. 14,692g); Taney, C. J., in Anonymous, Fed. Cas. No. 469; 35 Corpus Juris, pp. 336, 337. The first discussion in the reported federal decisions of the rule applicable in such cases occurs in the opinion of Chief Justice Marshall, above cited, in the celebrated trial of Aaron Burr. His opinion deals with the disqualification of jurors who had formed and delivered opinions as to the guilt of accused, but the report of the case (Fed. Cas. No. 14,693) shows that full inquiry was made as to opinions which had been formed as well as to those which had been also expressed, and the language used by the Chief Justice shows that the formation of a decided and fixed opinion, and not merely its expression, is a disqualification. He said: "Light impressions which may fairly be supposed to yield to the testimony that may be offered, which may leave the mind open to a fair consideration of that testimony, constitute no sufficient objection to a juror; but that those strong and deep impressions which will close the mind against the testimony that may be offered in opposition to them, which will combat that testimony, and resist its force, do constitute a sufficient objection to him. Those who try the impartiality of a juror ought to test him by this rule. They ought to hear the statement made by himself or given by others, and conscientiously determine, according to their best judgment, whether in general men under such circumstances ought to be considered as capable of hearing fairly, and of deciding impartially, on the testimony which may be offered to them, or as possessing minds in a situation to struggle against the conviction which that testimony might be calculated to produce. The court has considered those who have deliberately formed and delivered an opinion on the guilt of the prisoner as not being in state of mind fairly to weigh the testimony, and therefore as being disqualified to serve as jurors in the case." The rule as stated by Chief Justice Taney in Fed. Cas. No. 469 is as follows: "If the juror has formed an opinion that the prisoners are guilty, and entertains that opinion now without waiting to hear the testimony, then he is incompetent. But if, from reading the newspapers or hearing reports, he has impressions on his mind unfavorable to the prisoners, but has no opinion or prejudice which will prevent him from doing im partial justice when he hears the testimony, then he is competent." In Reynolds v. U. S., supra, Chief Justice Waite went fully into the question, and no better statement of the rule is to be found than that which is contained in his opinion in that case. He said: cause. "By the Constitution of the United States (Amendment 6), the accused was entitled to a trial by an impartial jury. A juror to be impartial must, to use the language of Lord Coke, 'be indifferent as he stands unsworn.' Co. Litt. 155 b. • All of the challenges by the accused were for principal It is good ground for such a challenge that a juror has formed an opinion as to the issue to be tried. The courts are not agreed as to the knowledge upon which the opinion must rest in order to render the juror incompetent, or whether the opinion must be accompanied by malice or ill will; but all unite in holding that it must be founded on some evidence, and be more than a mere impression. Some say it must be positive (Gabbet, Criminal Law, 391); others, that it must be decided and substantial (Armistead's Case, 11 Leigh [Va.] 659 [37 Am. Dec. 633]; Wormley's [Wormeley's] Case, 10 Grat. [Va.] 658; Neely v. People, 13 Ill. 685); others, fixed (State v. Benton, 2 Dev. & B. [19 N. C.] Law, 196); and, still others, deliberate and settled (Staup v. Commonwealth, 74 Pa. St. 458; Curley v. Commonwealth, 84 Pa. 151). All concede, however, that, if hypothetical only, the partiality is not so manifest as to necessarily set the juror aside. The theory of the law is that a juror who has formed an opinion cannot be impartial. Every opinion which he may entertain need not necessarily have that effect. In these days of newspaper enterprise and universal education, every case of public interest is almost, as a matter of necessity, brought to the attention of all the intelligent people in the vicinity, and scarcely anyone can be found among those best |