by bringing in the car and submitting it, practically at the line, to the customs officers for inspection. After that Kurczak never had possession, and could not have been guilty of concealing or transporting the property which he had imported.

[5] The final contention is that there was error in the matter of selecting a jury. The trial judge interrogated the jurors himself as to their qualifications, and declined to grant the request that counsel be permitted to conduct a general examination, but offered to put to the jurors, or any juror, any proper question which counsel desired. This practice is in use in several states; it was recently recommended to the federal trial judges by the conference composed of the Chief Justice and the senior Circuit Judges; it has been formally adopted in the court below by a published rule; and we approve it as a proper and often very desirable practice. It is to be assumed that a fair discretion will be exercised in permitting a reasonable amount of personal examination of a particular juror by counsel, when there is reason to believe that he needs such privilege in order to exercise peremptory challenges intelligently, and there is no occasion to deny that there might be such an abuse of that discretion as would constitute prejudicial error. Such a case can be considered, if it arises. In the present case there is nothing to show any such situation. Ungerleider v. U. S. (C. C. A. 4) 5 F.(2d) 604.

[6] Counsel asked the judge to inquire of the jury how they would vote if the testimony should turn out to be equally balanced, and the judge declined to put any such question. Clearly he was right. It is trifling with the time and procedure of the court to assume that jurors will not obey the court's instructions properly to be given. This contention is ruled by our decision in Christianson v. U. S. (C. C. A.) 290 F. 962. The conviction upon the second count is

reversed.

The sentence is affirmed.

date forthwith.

Man

Appeal from the District Court of the United States for the Eastern District of Michigan; Arthur J. Tuttle, Judge.

Patent infringement suit by Andre J. Michelin and others against the Hayes Wheel Company. Decree for plaintiffs (300 F. 458), and defendant appeals. Reversed and remanded, with instructions.

Fred L. Chappell, of Kalamazoo, Mich., and Melville Church, of Washington, D. C. (C. B. Des Jardins, of Washington, D. C., and Justin R. Whiting, of Jackson, Mich., on the brief), for appellant.

William J. Belknap, of Detroit, Mich., for appellee.

Before DENISON, DONAHUE, and MOORMAN, Circuit Judges.

DENISON, Circuit Judge. This is an infringement suit, based upon patent No. 927,266, issued July 6, 1909, to Andre J. Michelin. Its several claims in suit pertain to the assembly, in an automobile wheel, of a fixed rim, having upon its inner edge a tapering flange, which serves as an abutment for the demountable rim, the demountable rim itself, and spring clamps fastened by bolts and nuts to the face of the fixed rim, and having outer side of the demountable rim. Inasupwardly extending arms which grip the much as we think the case is controlled by the question whether defendants' clamping means are the equivalent of the patentee's spring clamps, and a full discussion would be of no benefit in other cases, we confine ourselves to a brief statement of conclusions, with reasons which can be understood by the parties and counsel.

[1,2] Clearly there was nothing new about the patented construction, unless as novelty was imparted by the spring clamps, that were substituted for the screw-driven wedges of the older art. It has been in some of the discussions assumed that these spring clamps permitted a radial resiliency as between the demountable rim and the fixed rim. This thought is not supported by the specification and drawings. In all three figures the space between the permanent and demountable rims is closed at each clamp location, by some form of device, to prevent any substantial radial motion, and the demountable rim in place is shown in contact with those blocking devices. Further than that, it is obvious that the spring clamps of the drawing

KENYON, Circuit Judge. Plaintiff in error presents an application for supersedeas and bail. In the United States District Court for the Southern District of Iowa, plaintiff in error pleaded guilty to count 1 of an indictment charging him with a third offense of unlawfully transporting intoxicating liquor for beverage purposes. Count 2 of the indictment was nolled.

At all stages of the proceedings he was represented by counsel. He was sentenced to sixteen months' imprisonment in the penitentiary at Leavenworth, Kan. After the sentence, new counsel seems to have been secured, and April 13, 1926, a motion for new trial was filed which attacked the indictment and alleged the mental irresponsibility of defendant at the time of the commission of the acts upon which the indictment was based. Affidavits of some of plaintiff in error's friends were filed in which certain peculiarities of plaintiff in error are pointed out, and the opinion is expressed by some of the affiants that he was mentally incompetent and had been for five years, which would cover the time during which the acts complained of took place. The District Court allowed a writ of error, but denied bail.

[1,2] The question to be presented to the appellate court is the action of the trial court in overruling the motion for new trial. No application was made to withdraw the plea of guilty. Ordinarily a writ of error does not lie based on the court's action in passing on a motion for new trial, although circumstances may be imagined where such action of the court might be error reviewable by the appellate court. This court, in Rossi v. United States (C. C. A.) 11 F. (2d) 264, has indicated the procedure to be followed in granting bail, and the law applicable thereto. Justice Butler of the Supreme Court of the United States in United States v. Motlow (C. C. A.) 10 F.(2d) 657, has carefully considered the question of granting bail. In the Rossi Case, supra, this court said:

"There are rare cases in which bail may

properly be denied, such as: (2) Where the record proves beyond a reasonable doubt that the errors assigned by the person convicted are frivolous, and that his writ of error is taken merely for delay."

[3] The only question to be considered here under this authority is: Are the errors assigned frivolous, and, is the appeal merely taken for delay? If this were a debatable question it would be the duty of a judge to

He

with care, and am satisfied that they are totally insufficient to show any mental irresponsibility of plaintiff in error or to raise any serious question thereof. No alienist examined the plaintiff in error, and, there is no affidavit from any alienist. The affidavits are in the nature of conclusions based on certain peculiar acts of plaintiff in error. was represented by counsel at the time he pleaded guilty. Questions seem to have been asked him by the court as to whether he fully understood and appreciated what he was doing. The trial judge had the opportunity of observing him. He was satisfied evidently as to his mental condition, or he would not have sentenced him to the penitentiary. The question raised as to the indictment is in no way preserved for attention in the appellate court. While the action of the trial judge in refusing bail is not controlling where application is presented to a judge of this court, it is a matter to be thoughtfully considered.

Under the circumstances disclosed by this record, I am satisfied bail should be denied.

Appeal from the District Court of the United States for the Southern District of New York.

States, on the relation of Enach Kozak, Habeas corpus proceeding by the United against Henry H. Curran, as Commissioner of Immigration. From an order sustaining exceptions to the special master's report, and

dismissing the writ, relator appeals. Order reversed, and relator discharged. See, also, 298 F. 951.

Buchler & Richman, of New York City (Louis Richman, of New York City, of counsel), for appellant.

Emory R. Buckner, U. S. Atty., of New York City (Charles Lincoln Sylvester, of New York City, of counsel), for respondentappellee.

MACK, Circuit Judge. To test the legality of an exclusion order, relator sued out a writ of habeas corpus. Judge Learned Hand, then District Judge, reviewing the record made by the immigration authorities, held that a certificate of police of Buenos Aires as to five years' continuous residence there, which concededly would bring relator within the nonquota provisions of the immigration law, was "prima facie disinterested and reliable evidence, which, if true, conclusively proved the alien's case. Its credibility could not be assailed on rational grounds, without some evidence to discredit it." Finding the explanation of the failure to produce it, namely, its retention by the American consul in Buenos Aires, who had taken relator's affidavit wherein the production of the certificate before him was averred, adequate, he held that "thus to exclude him without any evidence justifying its rejection was to deny him a fair hearing." On this ground he entered an order sustaining the writ.

But, holding that the question whether he was "entitled to admission is quite another matter," a reference was given to a special master. It was ordered that the writ be "sustained, and he be released, provided he files a bond in the sum of $1,000 conditioned that the matter be referred to Hon. William Parkin, as special master, to hear, take proof, and report thereon, with his opinion as to whether or not said alien is entitled to admission into the United States. The respondent shall have time to obtain from the American consul at Buenos Aires certificates of the police of Buenos Aires alleged by the alien to have been filed by him prior to his application for admission into the United States, showing that he has resided in the Argentine for five years next to his application for admission into the United States. In the event that said certificates have not been obtained by the respondent, the special master shall take secondary evidence to be produced by the alien. It is further ordered, adjudged, and decreed that the alien shall abide by the further order of the court, and in the event that an order of this court is entered denying the alien the right to admission into the United States, then and in such event the alien shall surrender himself deportation."

for

The special master took additional evidence, which he reported with his findings and conclusion that the relator was entitled to 14 F. (2d)-8

It is unnecessary to determine whether under Tod v. Waldman, 266 U. S. 113, 45 S. Ct. 85, 69 L. Ed. 195 (see, too, United States ex rel. Scimeca v. Husband [C. C. A.] 6 F. [2d] 957), which had not been decided at the time of Judge Hand's order, relator should have been remanded to the immigration authorities for a rehearing as to his admissibility, or whether because only the single question of continuous five years' residence in Argentine was involved, a judicial consideration and determination thereof either directly or by the report of a master was the proper procedure under Chin Yow v. U. S., 208 U. S. 13, 28 S. Ct. 201, 52 L. Ed. 369. For we are satisfied, whether only the record before the immigration authorities is to be considered, or that record is to be supplemented by the master's report, that relator had sustained the burden of establishing the fact of such residence and that there was no substantial evidence to justify his exclusion as coming within the quota provisions.

As he concededly was otherwise admissible, the order dismissing the writ is reversed, and relator discharged.

MILILLO v. CANFIELD, Prohibition
Director, et al.

(Circuit Court of Appeals, Second Circuit. July 13, 1926.)

No. 389.

Intoxicating liquors 69-Refusal of permit to use denatured alcohol in desired quantity, based on applicant's lack of experience in business intended, held not abuse of discretion.

Refusal of permit to use 1,100 wine gallons of denatured alcohol in manufacture of various toilet waters every 30 days, on ground that applicant had no experience in that business, or prospective customers, and had invested only $2,500, held not abuse of discretion.

Appeal from the District Court of the United States for the Southern District of New York.

Suit by Vincenzo Milillo, doing business under the firm and style name of the Aqueduct Manufacturing Company, against Palmer Canfield, Prohibition Director, and others, to review denial of application for permit to use denatured alcohol. From a decree for plaintiff, defendants appeal. Reversed, without prejudice to renewal of application.

Emory R. Buckner, U. S. Atty., of New York City (C. D. Williams, Asst. U. S. Atty., of New York City, of counsel), for appellants.

Lewis Landes, of New York City, for appellee.

interpreted by the Supreme Court in MaKing Products Co. v. Blair (June 1, 1926), 46 S. Ct. 544, 70 L. Ed. we are unable to concur in the conclusion that a lack of experience in the business, combined with an investment of only $2,500, was sufficient evi

MACK, Circuit Judge. The decree herein sought to be reversed is based upon an agreed statement of facts. It appears therefrom that Milillo, on May 5, 1925, submitted to the collector of internal revenue an application for a permit to use specially denatured alcohol at 3110 Jerome avenue, New York, in the manufacture of various toilet waters, specifying the formula of the denaturing, with an estimate that 1,100 wine gallons would be so used during a period of 30 days. After investigation, the application was denied. Thereupon a bill to review the refusal was filed. Both parties rested on the file of the prohibition unit. The agreed statement of facts alleges that the material portions of this file appear in the opinion.

The opinion states that the application for a permit had been refused upon the ground that "the applicant has no knowledge of this line of business, and does not have any orders or contracts for his preparations"; that the only evidence to support this conclusion is the statement found in the report of two prohibition agents that Milillo has no knowledge of the business, has not manufactured any of his products under his allowance of 5 gallons S. D. A. on his application, nor made any efforts to secure orders or contracts; but the deputy collector reported that Milillo gave as a reason for not booking orders that they could make no promises to prospective customers, and that they have not secured alcohol for samples until they receive the permit; that he intends to have a chemist employed and to carry on a profitable business. As Milillo had invested $2,500 in the business, the deputy collector recommended approval. The District Judge found the premises procured for the business to be entirely suitable, and, holding that the refusal of a permit, solely for the reason that the applicant lacked personal experience, was arbitrary and unwarranted, decreed the issuance of the permit for the withdrawal of denatured alcohol to the extent of 1,100 wine gallons for each 30-day period in accordance with the application.

In view of the very broad discretion given to the Commissioner under the statute, as

of the Commissioner in denying the application as made. In these circumstances, the action of the Commissioner on the application as made should have been sustained, but without prejudice to a renewal thereof under any changed conditions, or to an application for a permit involving the use of such lesser amount monthly as the circumstances might warrant.

The decree must therefore be reversed, without prejudice to such renewal of the original application or to such other or further application to be made to the Commissioner.

ROGERS, Circuit Judge, concurred in this conclusion, but through illness has not been able to participate in the preparation of the opinion.

VICKSBURG, S. & P. RY. CO. v. GODWIN.
(Circuit Court of Appeals, Fifth Circuit.
July 2, 1926. Rehearing Denied
July 24, 1926.)

No. 4584.

Damages 168 (1)—In locomotive fireman's action against railroad for loss of hearing, plaintiff's honorable discharge from army held inadmissible to show prior physical condition (Employers' Liability Acts; Boiler Inspection Act Feb. 17, 1911, as amended by Act March 4, 1915 [Comp. St. §§ 8639a-8639d]).

In locomotive fireman's action against railroad for loss of hearing under federal EmAct Feb. 17, 1911, as amended by Act March 4, ployers' Liability Acts and Boiler Inspection 1915 (Comp. St. §§ 8639a-8639d), plaintiff's honorable discharge from army was not admissible to show he was able-bodied when inducted, since it was not binding on defendant, especially as it tended to prove plaintiff's good character, which was not in issue.

In Error to the District Court of the United States for the Western District of Louisiana; Benjamin C. Dawkins, Judge.

Action by Leslie T. Godwin against the Vicksburg, Shreveport & Pacific Railway Company. Judgment for plaintiff, and defendant brings error. Reversed and re

manded.

E. H. Randolph, of Shreveport, La., for plaintiff in error.