the lease terminates sooner. In re Meyer & Bleuler (D. C.) 195 F. 653; Denechaud v. Board of Administrators, etc. (C. C. A.) 200 F. 1022; Lontos v. Coppard (C. C. A.) 246 F. 803. A landlord is therefore entitled to the same preferential treatment as a mortgage creditor, or, in other words, he is entitled to receive the full amount of the proceeds of the property in the leased premises on contributing to the general fund an amount equivalent to what it would have cost to enforce his lien in a proceeding other than in bankruptcy.

[6,7] Of course, if the property in the hands of the trustee is covered by two liens under the state law, it is necessary to determine which takes precedence, and the order of the liens fixed by the state law will be enforced. Preetorius v. Anderson (C. C. A.) 236 F. 723. The privilege accorded the landlord in Louisiana is coequal with the lien of a chattel mortgage, but the first in point of time must prevail. Youree v. Limerick, 157 La. 39, 101 So. 864, 37 A. L. R. 394. It is conceded in this case that the chattel mortgages are superior to the landlord's lien, as they attached to the property before it was placed in the leased premises. However, if there should be any surplus after satisfying the chattel mortgages and estimated costs of foreclosure, the landlord has a lien on that, and it does not go into the general funds of the estate.

[8,9] The determination of what may be properly considered costs of administration, entitled to priority in the distribution of the bankrupt's estate, is largely within the discretion of the court, depending upon the facts in each case. It cannot be said in this case that there has been any abuse of discretion. However, the amount to be contributed by lienholders is not to be fixed by requiring each to pay a stated proportion of the costs of administration, basing that upon the respective part of the fund to which each is entitled. Such an award might be unjust to a creditor, and require him to pay more than if bankruptcy had not intervened.

This disposes of the questions presented, except as to the rent for the period the premises were occupied by the trustee and for the period the baking outfit remained on the premises after it was sold..

[10, 11] As a general proposition, we may say that a landlord is entitled to be paid his rent for the premises occupied by the trustee as part of the costs of administration, but in this case the question would seem to be moot. Appellant is not entitled to a lien on the property left in the premises after the

sale, as there was no contract of lease between it and the purchaser, and mere occupancy does not create a lien under the law of Louisiana. C. C. art. 2708; Blanchard v. Davidson, 7 La. Ann. 654; Bisland v. Provosty, 14 La. Ann. 169. Furthermore, there would be no ground upon which to compel payment by the mortgage creditor for the period the property purchased by it remained in the store. It was the duty of the trustee to deliver or to put the purchaser in default, which he did not do. As the landlord is entitled to his privilege on all of the property not subject to the chattel mortgage, and this will absorb the fund, it is immaterial whether he be allowed rent as part of the cost of administration or not.

The judgment appealed from will be reversed, and the case remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

CARDENTI et al. v. UNITED STATES. Circuit Court of Appeals, Ninth Circuit. March 12, 1928.

No. 5296.

1. Criminal law 693-Failure to move for suppression of evidence until after jury has been impaneled waives objection.

Failure to move for suppression of evidence, as having been unlawfully obtained without a search warrant, until after trial has commenced and jury has been impaneled, is a waiver of the objection, unless under exceptional circumstances.

2. Internal revenue ~47(3)—On charge of operating illegal still, under plea of not guilty, government is not required to prove still was not registered nor bond given.

Where defendants plead not guilty to charge of operating illegal still, it is not incumbent on the government to prove that the still was not registered nor bond given.

3. Criminal law 1208(1)-Imposition of severe sentence, within legal limits, is not error.

Imposition of severe sentence is not legal error, where it is within the limits fixed by law.

In Error to the District Court of the

United States for the Southern Division of the Northern District of California; Adolphus F. St. Sure, Judge.

Criminal prosecution by the United States against Amedeo Cardenti and Freda Corbett, whose true name is Freda Springer. Judgment of conviction, and defendants bring error. Affirmed.

deemed to have waived them. Segurola v. United States (decided November 21, 1927) 275 U. S. 48 S. Ct. 77, 72 L. Ed. -.

See, also, Winkle v. United States (C. C. A.) 291 F. 493; MacDaniel v. United States (C.

DIETRICH, Circuit Judge. Adjudged guilty upon an indictment charging in four

counts, all under the internal revenue law

(26 USCA), illegal acts pertaining to the

maintenance of a still and the manufacture of intoxicating liquor, defendants bring error. [1] The point most earnestly urged is that the court should have suppressed the larger part of the evidence, because, as alleged, it was procured by an unlawful search and seizure. The indictment was filed on June 27, 1927, and on July 7th the defendants were

arraigned and pleaded not guilty, whereupon the cause was set down for trial on August

2d. For some reason the trial did not come

on until August 19th, upon which date, after the jury had been impaneled and sworn, the defendants, for the first time in court, indicated a desire to move for the suppression of the evidence. The motion thereupon presented was neither verified nor supported by any affidavit, nor did the defendants exhibit therewith the search warrant or the affidavit upon which it was issued.

Manifestly, the course so adopted, if it may be pursued as of right, would be attended with the most serious consequences. Assuming that the unverified averments of the motion presented issues of fact, the government could not have been required to meet them without reasonable time for preparation; and, should the motion have been ultimately sustained, the government might still have been able to prove its case, if given time to procure other evidence. But to that end the court could not, without peril, have discharged the jury and reset the case for a later date. Because of these embarrassments to the prosecution, and the resulting advantage to defendants, it would become the prevalent practice for defendants to wait until after a jury is impaneled and sworn before interposing such a motion. We do not say that in no case may defendants present the motion after trial has commenced, or demand opportunity to show in some appropriate manner during the course of the trial, that the evidence was procured in violation of their constitutional rights, but only that they must act with reasonable diligence in the assertion of their rights, or they will be

(C. C. A.) 4 F. (2d) 526; Souza v. United States (C. C. A.) 5 F. (2d) 9; Rossini v.

United States (C. C. A.) 6 F. (2d) 350; Armstrong v. United States (C. C. A.) 16 F. (2d) 62.

[2] This consideration is likewise controlling in respect to three of the four specifications involving the reception of evidence. As to

the fourth specification, a prohibition agent

called by the government, having, without obthe still was not registered and that the dejection, testified on direct examination that fendants had not given bond for the operation thereof, was asked on cross-examination whether he had access to the records of the Internal Revenue Department; his reply being in the affirmative, he was further asked whether he had searched the records, and he answered that he had not, but that he had had the bookkeeper make a search, and had registered. Whereupon counsel said: “I ask been informed by him that the still was not that it be excluded on the ground of hearsay." This request or motion is not clear, but whatever may have been intended, it is sufficient to say that under the circumstances it was not incumbent upon the government to adduce the testimony and it could not possibly have been prejudicial. There was no attempt by defendants to show either bond or registration, and hence the point is ruled by McCurry v. United States (C. C. A.) 281 F. 532, and Goodfriend v. United States (C. C. A.) 294 F. 148.

Defendants complain of the court's failure to give three requested instructions. Two of them were upon the subjects of presumption of innocence, burden of proof, and reasonable doubt, all of which were fairly covered by the instructions given. The third request was to the effect that the jury should not consider or weigh as against defendants the mere fact that they had been arrested upon the charge upon which they were being tried. While the court did not use the word "arrested," it did expressly instruct that the indictment was a mere accusation, and was not to be considered as evidence. That any juror would consider the mere fact of arrest as evidence is wholly incredible. [3] Finally, it is urged that the punishment imposed, two years of imprisonment in the penitentiary for the man defendant, and six

months in jail for the woman, are excessive; but, though the sentences, particularly that of the man, may seem severe, they do not exceed the maximum authorized by the statute, and hence no legal error was committed in imposing them.

Judgment affirmed.

since insurer, in imposing conditions on his risk, excepts all others, and fact that assured is not personally to blame for nonperformance of conditions by his agent is of no avail.

6. Insurance 424-Requirement of jeweler's policy for personal carriage of jewels not forwarded by registered post held applicable to forwarding within city.

Circuit Court of Appeals, Second Circuit. March 12, 1928.

No. 145.

1. Insurance 424-Jeweler's policy, requiring sendings of jewels not personally carried to be by registered post, held not to cover loss during transportation by baggage truck. All-risks jewelers' block policy, insuring jewels at any place, but requiring sendings of property insured, in so far as they were not personally carried, to be by registered post, held not to cover loss resulting while being transferred in traveling salesman's trunk to railroad station by baggage truck.

2. Statutes 228-Proviso does not operate beyond express exceptions carved out of general enactment.

In the construction of statutes, a proviso does not operate beyond express exceptions, which it carves out of general enactment.

3. Insurance146(1)—Inapplicable proviso of jeweler's policy cannot be resorted to for purpose of making doubtful unambiguous clause to which it was appended.

Inapplicable proviso of all-risks jewelers' block policy cannot be resorted to, for purpose of making doubtful otherwise unambiguous clause to which it was appended to provide an exception.

4. Insurance 424-Baggage truck driver, transporting trunk containing diamonds to depot, held not personally carrying diamonds, within requirement of insurance policy; "personally carried."

Baggage truck driver, to whom trunk containing diamonds was delivered for transportation to railroad depot, held not to have been "personally carrying" diamonds, within meaning of insurance policy requiring sendings of property insured, in so far as not personally carried, to be by registered post; "personally carried" meaning carried by insured or some servant or agent in his employ.

5. Insurance 424-Neglect of insured's agent to personally carry jewels as required by policy avoided policy, without regard to insured's personal blame.

Where all-risks jewelers' block policy required jewels not sent by registered post to be personally carried, neglect of insured's agent to carry goods personally avoided the policy,

or short haul.

In Error to the District Court of the United States for the Southern District of New York.

Action by Jacob Schliff and another, copartners doing business under the firm name and style of Schliff Bros., against the Eagle & Star British Dominions Insurance Company, Limited. Judgment for plaintiffs, and defendant brings error. Reversed.

This is an action upon an insurance policy to recover for the loss of unset diamonds. It was brought in the state court and removed to the District Court by defendant, a British corporation. Plaintiffs are diamond dealers with an office in New York City. They employed one Strauss, who resided in Chicago, as their traveling salesman. After reaching Chicago, and remaining there several days selling his merchandise, Strauss prepared to proceed to Louisville, on Sunday, May 10, 1925. On the preceding Saturday afternoon he took the diamonds from a safety deposit vault, where he had deposited them for safekeeping, carried them to his home, and put them with his clothing into his trunk. On Sunday morning he delivered this trunk to the driver of a truck belonging to Parmelee Transfer Company, who called at his house pursuant to instructions previously given by Strauss. The trunk was to be carried to the Union Station, where Strauss intended to exchange the claim check received from the Parmelee truckman for a railway baggage check to Louisville. The trunk never reached the Union Station. When the truckman stopped at another house, and went within to get a trunk, three men drove up in another vehicle, removed Strauss' trunk from the Parmelee truck, and disappeared with it. So plaintiffs' diamonds were lost. Upon the jury's verdict, judgment for some $36,000 was entered for the plaintiffs.

Solomon J. Rosenblum, of New York City (Charles G. F. Wahle, of New York City, of counsel), for plaintiff in error.

of America.

."Sendings of property insured under this policy, in so far as the same are not personally carried, must be forwarded by registered post.

"Provided always that where, owing to postal regulations or laws of the country from which the property is being forwarded, such goods are prohibited from being dispatched by registered post, the same may be forwarded by parcel post or through a public forwarding office, providing that a declaration is made at the time of dispatch of 5 per cent. of the value of the goods, not exceeding a declaration of francs 10,000."

The first paragraph above quoted declares that the risk shall cover property of the specified description in any premises or place, or being carried or in transit, anywhere within the geographical limits stated. It thus distinguishes between goods "in any premises or place" and those "being carried or in transit." The paragraph beginning "Sendings" clearly refers back to the prior statement with respect to property being carried or in transit, and limits the generality of that statement. "Sendings of the property insured," if it is not personally carried, "must be forwarded by registered post." If we stop with these two paragraphs, and omit the proviso, it seems to us perfectly clear that the policy contemplates that insured property, while being carried or in transit, must be personally carried, or must be forwarded by registered mail. The property is of a character best adapted to these types of transportation, being small in 24 F. (2d)-50

size, light in weight, and of great value. Personal carriage, which in practice means carrying by the insured's employees, or sending by registered post, may well have been supposed to involve less risk of loss. In any event, up to this point the language of the policy limits the risk of property being carried or in transit to sendings by messenger or registered post.

In the construc

[2, 3] The language of the proviso, about which most of the argument has revolved, creates some doubt as to its applicability to any transportation, except one originating in Belgium, the only one of the named countries where a declaration of value in terms of francs would be possible. It is also argued that the words "the country from which the property is being forwarded" limit the proviso to international shipments. But, even if the proviso be assumed to be so limited, the "sendings" clause ought not to be correspondingly limited. tion of statutes, a proviso does not operate beyond the express, exceptions which it carves out of the general enactment. United States v. Dickson, 15 Pet. 141, 10 L. Ed. 689. We think this general rule of interpretation is equally applicable to other written documents, and that the proviso in question cannot be resorted to for the purpose of making doubtful the otherwise unambiguous clause to which it is appended to provide an exception. The general statement of risk covers property being carried or in transit within any one of the three countries. The "sendings" paragraph limits the risk while it is being carried or in transit to personal carriage and forwarding by registered mail, two methods thought to be of exceptional security. The limitation is as important in carriage or transit within the boundaries of each of the three countries as across the boundary of Belgium. The proviso allows as an exception to the general limitation an alternative method of forwarding upon the conditions stated therein. If the conditions cannot be complied with, or if the proviso is limited to international shipments, then that alternative is not open to the insured in sendings within the United States. But to say that, because the alternative offered by the proviso is not applicable here, the limitation of the main clause is entirely done away with, would be most unreasonable. [4] It remains to consider whether the diamonds were being "personally carried" at the time of the loss. This means carried by the insured, or some servant or agent in his employ. It is clear from the proviso that property delivered to a public forwarding

[5] A second and more substantial argument is that, since personal carriage by Strauss was covered, no matter what his negligence, or even if he stole the goods, his neglect to carry personally, or to send them by registered post, was part of the insured risk. To this, however, we cannot accede. When an insurer imposes conditions on his risk, he excepts all others. It is no answer to say that the assured is not personally to blame for nonperformance of the conditions by his agent. Liverpool & London Ins. Co. v. Gunther, 116 U. S. 113, 128, 129, 6 S. Ct. 306, 29 L. Ed. 575; Id., 134 U. S. 110, 10 S. Ct. 448, 33 L. Ed. 857. See, also, Whealton Packing Co. v. Etna Ins. Co., 185 F. 108, 34 L. R. A. (N. S.) 563 (C. C. A. 4); Shamrock Towing Co. v. Am. Ins. Co., 9 F. (2d) 57 (C. C. A. 2).

In the Gunther Case the kerosene which caused the fire was brought upon the premises by a tenant without authority of the insured, but it was held none the less a breach of condition which prevented recovery. A servant is more nearly identified with his principal in such a case than is a tenant. Strauss was the servant of the insured, with complete control over their diamonds. His default, if he was instructed to carry them on his person, was still chargeable to his principals; it was within the scope of his authority. The insurer refused to insure any carriage or transit, except personal or by registered post (the proviso not applying), and cannot be held for risks not included in his contract.

[6] Finally it is urged that the sendings clause has no application to a forwarding from one point to another in the same city. We see no reason why it should be so narrowed. The policy covered the risk of personal carriage or registered mail. If carriage by a common carrier was substituted, the risk was different. Whether it was greater or less does not matter; it was different. And this is true, whether the carriage is for a long or short haul.

We were informed that this is a new form of policy, of which there has been no previous judicial construction. Construing it as we do, it was error to overrule the defend

UNITED STATES v. SMAIL et al.

Ex parte O'LEARY et al. Circuit Court of Appeals, Second Circuit. March 12, 1928.

No. 196.

1. Intoxicating liquors 275-Information on which reasonable person would act is necessary for lessee's lease to be forfeited because of sublessee's liquor nuisance (National Prohibition Act, tit. 2, § 23 [27 USCA § 37]).

For lease to be forfeited under National Prohibition Act, tit. 2, § 23 (27 USCA § 37), because of the sublessee maintaining a liquor nuisance thereon, while it is not enough to show sublessee's guilt, it is not necessary that lessee should have had full knowledge thereof; but, if the information which lessee had was such that a reasonable person would act on it, if honestly disposed to prevent the unlawful use of the property, he was bound to follow it up, and, if he learned that his suspicions were justified, to take affirmative action, and, failing to do this, his inaction may be treated as connivance.or participation, and cancellation of the lease granted on application of the lessor in the government's suit to enjoin the nuisance.

2. Intoxicating liquors 275-Lease may not be forfeited for sublessee's maintaining liquor nuisance, without evidence fastening on lessee some notice; likelihood that he knew not being enough (National Prohibition Act, tit. 2, 23 [27 USCA § 37]).

Evidence is insufficient to warrant forfeiture of lessee's lease under National Prohibition Act, tit. 2, § 23 (27 USCA § 37), because of sublessee's maintaining a liquor nuisance, where evidence does not fasten on lessee some actual notice calling for action, but merely raises some likelihood that he knew what was going on.

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

Suit by the United States against Abbas Smail and others for abatement of liquor nuisance. From a decree canceling lease on cross

s-bill of defendants Margaret and Penelope O'Leary, defendants N. & M. Realty Corporation, Nathan Shapanka, and Minnie Stern appeal. Reversed, and cross-bill dis

missed.

On June 24, 1927, the United States filed a bill in equity against Smail and Mosjian, the N. & M. Realty Corporation, the O'Learys, and Shapanka and Stern, alleging that the second floor of certain premises, Nos. 357-359 West Thirty-Eighth street, in New York City, was being used for the sale of liquor in violation of the National Prohibition Act (27 USCA) and that it had be