are determinative of the effect of the instruction. The language complained of was used in defining plaintiff's duty to mitigate his losses. It was stated in the charge that it was his duty to accept the offer of September 21st and procure work thereafter, if he could, as a member of the local union; but he was not required to do so, in mitigating his damages, unless at the time the offer was made he was advised that it was unconditional so far as his claim was concerned. Certainly it was not his duty to accept the offer if it was made upon the condition that he abandon his claim. A permissible if not the only logical inference from the circumstances referred to in the absence of a statement to the contrary-was that the offer was conditioned upon a renunciation of the claim. It was not, therefore, error to require defendant to have informed plaintiff that an acceptance of the offer would not prejudice his claim. [4] What we have heretofore said disposes of the assignments of error on the court's refusal to give the charges requested. As to the contention that there is not substantial evidence to support so large a verdict, it is sufficient to say that, if plaintiff had been regularly employed during such time as he was unable to obtain employment between April 3, 1921, and June, 1922, his earnings, with interest thereon from the date of the final action of the executive committee, and what he expended in mitigating his losses, would have amounted to more than the verdict. But it is said that work was scarce, and he would not have been able to procure it in Cleveland, even if given a card, and further that it was his duty to go to another city and find employment. On the first point the evidence is conflicting, but supports the award. With the second we cannot agree. Plaintiff was entitled to membership in the local union. His home was in Cleveland, and he had the right to confine his efforts to the city in which he lived. It would be too much to expect one who is lawfully entitled to membership in a local union, and who has been denied that right, to abandon his home and go to another city for the purpose of mitigating his losses. If, as the evidence tends to show, he exercised the proper degree of diligence in attempting to procure work which he was capable of doing within the city of Cleveland, he performed every duty that he was required to perform. The judgment is affirmed. CADILLAC AUTOMOBILE MOTOR NO. 61-D-476 v. UNITED STATES. (Circuit Court of Appeals, Sixth Circuit. July 8, 1925.) No. 4290. I. Internal revenue 46-Carrying of cocaine on the person held not to subject vehicle in which such person was riding to forfeiture. That a person riding in an automobile was carrying an ounce of cocaine in his pocket, in a bottle not bearing a tax-paid stamp, held not to subject the automobile to forfeiture under Rev. St. § 3450 (Comp. St. § 6352), as a vehicle used for the concealment or transportation of property subject to tax, with intent to defraud the government of the tax. 2. Internal revenue 46 Carrying small quantity of narcotic held not to establish intent to defraud revenue. That a person carried in his pocket, in a bottle not bearing a tax-paid stamp, an ounce of cocaine, the tax on which, under Harrison Narcotic Act, § 1, as amended by Act Feb. 24, 1919 (Comp. St. Ann. Supp. 1919, § 6287g), concealing or transporting it with intent to dewas one cent, does not establish that he was fraud the government of the tax, for the purpose of subjecting the vehicle in which he was riding to forfeiture under Rev. St. § 3450 (Comp. St. § 6352). 7 F.(2d) 102 Elvira had not authorized its use for, and had no reason to suppose it was to be used for, carrying cocaine. John Bellomini had been suspected of supplying narcotics to addicts. An arrangement was made with him that he would furnish some cocaine to a purchaser. In carrying out this arrangement he drove up in this automobile and was arrested; upon search he was found to be carrying in his pocket a bottle containing one ounce of cocaine, and the bottle was unstamped. This is the complete case made for condemnation. If the tax was unpaid, the amount thereof was one cent. The questions presented are: First was the cocaine being removed or concealed, within the fair scope of those words as found in Rev. St. § 3450 (Comp. St. § 6352) Second, if there was removal or concealment, was it with intent to defraud the United States of the narcotic tax? [1] The case is not controlled by our recent decision in Commercial Credit Co. v. United States, filed April 6, 1925, 5 F. (2d) 1. There has been no later statute at all inconsistent with the narcotic taxing statute, and hence the questions of implied repeal and of "direct conflict," which have arisen as between section 3450 and the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 101384 et. seq.) and the Willis-Campbell Act (42 Stat. 222) do not here exist. However, in the Commercial Credit Company Case we discussed the question whether transportation, in the way incident to ordinary ownership, and by a person who had originally been under no obligation to pay the tax, was the removal or concealment contemplated by section 3450. The reasons involved indicated to us a negative answer; but we felt constrained to a contrary holding because of the holding, sub silentio, in the Goldsmith-Grant Case, 254 U. S. 505, 41 S. Ct. 189, 65 L. Ed. 376. The latter case has no such controlling application to the transportation of a narcotic. With reference respectively to liquors and to narcotics, the matters of storage in bond and removing from bond and the statutes as to taxation are vitally different. We are therefore at liberty to draw, with regard to narcotics, what we think the right inference as to the meaning of "removal" and "concealment" and free of constraint from the Goldsmith-Grant Case. In addition, the automobile which is carrying in boxes or cases a substantial quantity of liquors is "removing" them in a very direct way-if "remov ing" means "transporting"-but it seems to us a perversion of plain terms to say that an automobile is "removing" cocaine just because the driver has one ounce in his pocket. If the word is rightly thus used, and if we keep in mind that under the GoldsmithGrant Case entire innocence is of no importance, it follows that a casual passenger who rides upon an automobile or a steamboat, and who has a trifle of nontax-paid narcotic in his pockets, will fatally taint the vehicle. We cannot accept this view of the statute. [2] Nor can we find the necessary intent to defraud the United States of the tax. If, with reference to so solemn a matter as taxes, there can be a reductio ad absurdum we have it here; but, passing that, we next observe that there seems to be no evidence that the tax upon this cocaine had not been paid. The stipulation of fact is "that there was found concealed in the hip pocket of Bellomini two small bottles, one of which contained morphine and one of which contained cocaine; that the morphine bottle contained one-eighth ounce and that the other bottle contained one ounce of cocaine; that the morphine bore the original tax stamp across the label, the cocaine bearing no stamp. • It is further agreed that John Bellomini is neither an exporter or an importer nor a licensed dealer in narcotics, neither is he a manufacturer of same." There is nothing to show whether the bottle of cocaine was some sort of an original package, which was required to be stamped, or whether it might have been dispensed from a larger bottle which might have been properly stamped.1 In view of the trifling amount of the tax the latter is at least as probable as the other. We see no possibility of concluding, with the certainty that should be required in such a case, that this tax had not been paid, unless such a conclusion be made to rest upon section 1 of the Harrison Act, as amended February 24, 1919 (section 6287g, U. S. Comp. St. 1919 Supp.). It is quite clear that there can be no condemnation under section 3450 for any unpaid dealer's tax-the words "tax thereon" must refer to the tax on the article itself, like the per gallon tax upon liquors or the duty tax upon imports. tax can be here involved except the per ounce tax, which was for the first time levied by Hence no 1 True, the statute requires that in such case the prescription be specified on the bottle label, but the lack of such label indicates nothing regarding tax payment. the amendment above cited, and which directs the payment of an internal revenue tax at the rate of one cent per ounce, such tax to be paid by the "importer, manufacturer, producer, or compounder thereof," and that tax stamps therefor shall be attached so as to seal the stopper. The amendment then provides that "it shall be unlawful for any person to purchase, sell, dispense, or distribute any of the aforesaid drugs except in the original stamped package or from the original stamped package; and the absence of appropriate tax-paid stamps from any of the aforesaid drugs shall be prima facie evidence of a violation of this section by the person in whose possession same may be found." We do not see how this phrase, "guilty of a violation of this section," can be so construed as to support the inference that the per ounce tax had not and it is not seen how, not being a registered dealer, he could have procured a stamp to affix to this bottle. Under the principles of the Jin Fuey Moy Case, 241 U. S. 394, 402, 36 S. Ct. 658, 60 L. Ed. 1061, Ann. Cas. 1917D, 854, with reference to section 8 (Act Dec. 17, 1914 [Comp. St. § 6287n]), it cannot have been intended to penalize Bellomini (much less an innocent third party) because he did not affix a stamp, when he was not of the class required or permitted to affix stamps. Upon the whole case, we think it clear that the judgment should be reversed, the libel of the United States be dismissed, and the petition of the claimant be granted. The case is remanded for these purposes. cert. denied 4694√577, 70-KEA. been paid on this particular ounce in Bello-4246 Sup (1.113. mini's pocket, since by the terms of the statute this tax was to be paid only by the importer, manufacturer, producer, or compounder, and it is stipulated that Bellomini was not one of these. It is impossible, for the purposes of this case, to suppose that the phrase means that there is a presumption of nonpayment by the original purchaser, because it says that the possession shall be evidence of violation by Bellomini, the posses sor. Further, it is not without importance that a further paragraph of the amendment says that "all the provisions of existing internal revenue laws relating to searches, seizures and forfeitures of unstamped articles are hereby extended to and made to apply to the articles taxed under this act." This careful inclusion of existing laws for forfeiture of the article, without reference to forfeitures of vehicles used in removing the articles, is significant.2 Further, it is to be observed, as was pointed out in the Commercial Credit Case, that it is difficult to understand how one can intend to defraud the United States of a tax which he was under no duty to pay, and which he could not have paid if he had wanted to. Bellomini was not among the classes upon whom the duty to pay was imposed, 2 Especially so, as when section 3450 was adopted (section 14, Act July 13, 1866 [Comp. St. § 6352]), there was no tax on these drugs -morphine, phosphorus and others being exempted by section 10, and later, when phosphorus was taxed, section 3450 was expressly made applicable (section 16, Act April 9, 1912 [Comp. St. § 6286]). See full discussion in U. S. v. Mangano (C. C. A. 8) 299 F. 492. DE WITT v. UNITED STATES. (Circuit Court of Appeals, Fourth Circuit. June 15, 1925.) No. 2334. I. Criminal law 1086(14)-Motions for new trial and in arrest of judgment held to present nothing for review, where no exceptions In the record. Motions for new trials and in arrest of judgment in liquor prosecution presented nothing for review, where record contained no exceptions. 110(31)—In 2. Indictment and information Informations in language of statute held sufficient to charge offenses under National Prohibition Act, tit. 2, § 32 (Comp. St. Ann. Supp. 1923, § 1013828). 3. Criminal law 994 (3)-Entry of judgments at subsequent term was authorized, where motions for new trials were interposed when verdicts were rendered. In liquor prosecution, court was authorized to enter judgments at term subsequent to rendition of verdict, where motions for new trials were interposed when verdicts were rendered, which were not acted on until such subsequent term, when further motions for new trials were made. 4. Criminal law 994 (3)-Motion for new trial keeps case open for entry of judgment; right to postpone case for entry of judgment until next term exists independent of motion for new trial. Motion for new trial of itself keeps case open for entry of judgment after same is acted on until an ensuing term of court, and right to postpone case for entry of judgment until next term of court exists independent of such motion for a new trial. 7 F.(2d) 104 In Error to the District Court of the United States for the District of Maryland, at Baltimore; Morris A. Soper, Judge. Charles De Witt was convicted of unlawfully possessing property for the manufacture of liquor, and of unlawfully possessing for sale certain substances for use in manufacture of intoxicating liquors, and he brings error. Affirmed. Harold J. Drescher, of Brooklyn, N. Y. (Alexander S. Drescher, of Brooklyn, N. Y., on the brief), for plaintiff in error. James T. Carter, Asst. U. S. Atty., of Baltimore, Md. (A. W. W. Woodcock, U. S. Atty., of Baltimore, Md., on the brief), for the United States. ber, as were also grounds of motions in arrest of judgment, all of which were overruled, and the judgments aforesaid entered. Assignments of error were made to the action and judgments of the court complained of, relating briefly to the insufficiency of the informations; to the action of the court in excluding testimony, especially in connection with an alleged illegal search; because of the failure of the court to set aside the verdicts as contrary to law and the evidence; for not dismissing the informations; for failure to grant new trials and entering judgments on the verdicts; and also for the failure to grant defendant's motions in arrest of judgment, because of lack of ju risdiction of the court to enter the same at Before WOODS, WADDILL, and ROSE, the time it did. Circuit Judges. WADDILL, Circuit Judge. Plaintiff in error was proceeded against by two criminal informations filed on the 16th day of July, 1924, the first charging that he unlawfully had in his possession certain property therein set forth and described, designed for the manufacture of liquor, and intended for use in violation of the provisions of title 2 of the Act of October 28, 1919, known as the National Prohibition Act (Comp. St. Ann. Supp. 1923, §§ 101381⁄2-10138/2z) and the second charging that he unlawfully possessed for sale certain preparations, compounds, and substances designed and intended for use in the manufacture of intoxicating liquors, set forth and described in the information, in violation of the statute of the United States in such case made and provided. On the 25th of July, 1924, the defendant appeared and pleaded not guilty to the two informations. The cases were heard together, and verdicts of guilty returned on both informations on the 28th of July, 1924. Motions for new trials were interposed, which were not disposed of at that term of the court. On the 17th of October, 1924, additional motions for new trials were interposed, and on the same date overruled. On the same day, the court also overruled motions made in arrest of judgment, and judgments were thereupon entered, requiring the defendant to pay a fine of $500 and costs in the first-named information, and a fine of $10 and costs in the second information. Defendant was duly admitted to bail in the sum of $1,000 in anticipation of his appeal to this court. Sundry grounds of motions for new trials were given, especially on the 17th of Octo [1] These cases are quite unique, in that, although the several motions above mentioned are fully set forth in the record, which involve as well the insufficiency of the informations as, in effect, the legality of everything that was done, still, there is not a sign of exception in the record to enable the court to judge of the propriety of the rulings, and the circumstances under which the same were made, further than as contained in the mere recital of the occurrences excepted to; nor was any demurrer or motion made to quash the informations. The record, therefore, presents nothing that the court need or can intelligently act upon (McGrath v. United States [C. C. A. 2d Cir.] 275 F. 294, 296), certainly unless the informations should be deemed so defective as to charge no offenses, and that the court at the time of entering the judgment was wholly without jurisdiction to conclude the cases by entering judgments therein. [2] These two positions are, in our judgment, wholly without merit. The informations are in the language of the act of Congress, and sufficiently and amply set forth and describe the charges against the accused, and are certainly sufficient in the case of mere statutory misdemeanors, as here. Section 32 of title 2, National Prohibition Act, 41 Stat. 305, 317 (Comp. St. Ann. Supp. 1923, § 10138/2s). [3] As to the right to enter the judgments the verdicts were rendered at the July term, 1924, and motions for new trials at once interposed, which were not acted upon until the October term, when further motions for new trials were made. The court thereupon overruled all the motions, and entered the judgments complained of. [4] A motion for a new trial of itself keeps the case open for the entry of judg ment, after the same is acted upon, and clearly so until an ensuing term of the court, and the right to postpone the case for entry of judgment at least until the next term of the court, exists independent of such motion for a new trial. Gillespie v. Walker, Sheriff (C. C. A. 4th Cir.) 296 F. 330. The judgments of the District Court will be affirmed. Affirmed. SAN JUAN FRUIT CO. v. CARRILLO et al. (Circuit Court of Appeals, First Circuit. July 7, 1925.) No. 1837. 1. Courts 438-District Court of Porto Rico without jurisdiction of proceeding to recover distinct parcels of land, except one which was alleged to exceed $3,000 in value. District Court of Porto Rico, sitting as a federal court, was without jurisdiction of controversies by which plaintiff sought to recover possession of numerous distinct parcels of land, each of which was held and possessed by one or some of defendants claiming title to same in severalty and not jointly, except that parcel which was alleged to exceed $3,000 in value, where bill nowhere charged that any of parcels except one was in excess of value of $3,000, or that controversy involved in respect to any of separate parcels, except one, exceeded $3,000. 2. Quieting title 13-District Court of Porto Rico without jurisdiction in equity of suit by plaintiff to establish its title to land in possession of defendant. District Court of Porto Rico, sitting as a federal court, was without jurisdiction of a suit in equity by plaintiff out of possession, claiming title to a distinct parcel of land in possession and occupancy of defendant, to establish its title and recover possession, by alleging that title under which defendant claimed had been decreed to be a dominion title by another court of competent jurisdiction through fraud perpetrated by defendant or his predecessors in title. Appeal from the District Court of the United States for the District of Porto Rico; Arthur F. Odlin, Judge. Bill by the San Juan Fruit Company against Salome Carrillo and others. From decree of dismissal, plaintiff appeals. Affirmed. E. B. Wilcox, of San Juan, Porto Rico, for appellant. Henry G. Molina, of San Juan, Porto Rico, for appellees. BINGHAM, Circuit Judge. This is an appeal from a decree of the federal District Court for Porto Rico dismissing a bill in equity brought by the San Juan Fruit Company, a New York corporation, against some 48 individual defendants, citizens of the United States resident and domiciled in Porto Rico. The bill alleges that the plaintiff is the owner in fee and entitled to immediate possession of a tract of land containing 64 acres, more or less, describing it; that this tract is composed of three tracts—one of 52 acres, one of 30 acres, and one of 8 acres, more or less, describing each-which tracts by measurement in fact contain 64 acres; that the plaintiff obtained title to the 64acre tract October 22, 1902, by notarial deed from Strong and Honer, recorded in Book 14, p. 86, of the Records of Rio Piedras; that Strong and Honer obtained title August 2, 1906, from Newton L. Reed by no tarial deed which was recorded; that Reed obtained title August 30, 1904, from the San Juan Fruit & Land Company by notarial deed which was duly recorded; that the San Juan Fruit & Land Company obtained title June 19, 1902, from Eleuterio Landrau by notarial deed, which was recorded in the Records of Bayamon, Book 1, p. 83; that Landrau obtained dominion title June 12, 1902, to the tract in question, together with other land, in the District Court of San Juan; that said 64-acre tract is worth more than $5,000; that the defendants are in wrongful possession of said 64-acre tract without right, title, or interest therein; and claim said tract of land adversely. That prior to 1897 the 52-acre tract belonged to the Sisterhood of Carmelite Nuns in Porto Rico; that in that year the de-' fendants herein, and others under whom they claim title, having wrongfully entered upon said tract of land and being in occupation thereof, Father Manuel Diaz Canejo, a Roman Catholic priest, as the administrator and representative of the sisterhood, brought action of "Conciliation" in the then Municipal Court of Rio Piedras, the purpose of which was to ascertain whether said persons claimed any ownership in said tract or opposed the ownership of the sisterhood; that said persons appeared and denied that they had any right, title, or interest in the tract and acknowledged the sisterhood to be the owner; that later the sisterhood sold the tract of 52 acres to Eleuterio Landrau, the Before BINGHAM, JOHNSON and AN- plaintiff's predecessor in title; that after DERSON, Circuit Judges. the determination of the Conciliation suit |