said persons proposed to pay a monthly rental for living on the tract, which was agreed to by the sisterhood and by Landrau after he had purchased; that later the said persons failed to pay their rent as agreed, and in 1899 Landrau, then the owner, brought a suit of ouster against them and secured a judgment of ejectment; that said persons then having procured Landrau not to execute said judgment promised to pay the rental and were allowed to remain in possession; that this agreement continued in force, and in 1902 Landrau secured a dominion title to the 64-acre tract, which included the 52acre tract, and sold the same to the San Juan Fruit & Land Company, giving deed therefor as above stated; that the San Juan Fruit & Land Company having made numerous attempts to secure possession, said persons brought suits in the District Court of San Juan against that company in which they sought to have the dominion title obtained by Landrau on June 12, 1902, declared null and void and to have themselves decreed the owners of the 52-acre tract, alleging that they were in possession and were the owners thereof by purchase and inheritance from one Victorian Coto; that said cause was tried upon the merits and judgment rendered in favor of the company, the plaintiff's predecessor in title; that the defendants herein are in possession of said 52acre tract and living thereon; that on March 25, 1914, the present plaintiff brought a suit in ejectment in the District Court of the United States for Porto Rico against the defendants herein or those under whom they claim title, alleging that it was the owner of the tract of 52 acres and entitled to immediate possession; that on motion of said defendants the suit was dismissed on the ground that the claimed rights of the defendants were several, each claiming a parcel thereof, and not jointly; that the suit was not dismissed on its merits but for misjoinder of parties; that within a few weeks thereafter certain of the defendants or those under whom they claim title, with knowledge of the foregoing facts, applied to the District Court of San Juan for dominion title of certain small tracts, knowing that the tract described by each in his or her petition for dominion title was within the tract of 52 acres of which the plaintiff had a recorded dominion title, and falsely and fraudulently stated and represented to that court in their petition and sworn testimony that no recorded title to the tract described by each existed and that each had been in

peaceful and uninterrupted possession, in some cases, for more than 20 and in others for more than 30 years; that the plaintiff was not aware of the proceedings and from the descriptions given could not know that the respective parcels were included in the 52-acre tract; that the defendants who have recorded dominion titles and deeds of small tracts within the 52-acre tract are: Dolores Nieves, having a tract of land composed of 4.204 acres, describing it; Matea Coto, having a tract of land composed of 5.22 acres, describing it; Salome Carrillo, having a tract of 3.589 acres, describing it; Justino Diaz, having a tract composed of 1⁄2 acre, describing it; Maria Ysidora Morales y Morales (also known as "Dolores"), having a tract composed of 10 acres, describing it; Carlos, Juana, Francisca and Nicasio Marin, having a tract composed of 22 acres, describing it; Santos Mejia Nigaglioni, having a tract composed of 4 acres, describing it; Santos Mejia Nigaglioni, having a tract composed of 2.600 square meters, describing it; and Vicente and Esteban Garcia Diaz, having an undivided interest in the tract composed of 22 acres previously described as claimed by Carlos, Juana, and Francisca and Nicasio Marin. That as to the defendants other than those herein specially and previously named the plaintiff has no knowledge of the area or bounds of their said holdings, but alleges that all the defendants claim title by inheritance or purchase from the same source, from an unrecorded deed from one Victoriano Coto; that any and all the tracts of land claimed by the defendants lie within the 52-acre tract; that the defendants possessing the tracts particularly named herein obtained their dominion titles in fraud of the plaintiff, without its knowledge and without no tice to the plaintiff, and that it learned of their proceedings to obtain dominion title only by accident within a few months prior to the bringing of this suit; that the afore mentioned tract of land of which Maria Ysidora Morales y Morales claims dominion title is worth in excess of $3,000; that this defendant and her husband, knowing the complainant's right and title to this tract of land, have built houses upon it and made other improvements which are worth, together with the tract of land, a sum in excess of $5,000; that the remedy at law is inadequate, and would involve the bringing of a multiplicity of actions unless it could maintain this proceeding in equity; that it is entitled to receive the rents and profits from

the 52-acre tract; that the plaintiff has not been guilty of laches. And prays that the dominion titles obtained by any of the defendants and the deeds under which they profess to hold be declared null and void; that the records of titles and the deeds in their favor be canceled on the books of the registry of property; that the plaintiff be adjudged the owner of the 52-acre tract and all the houses built thereon and the improve ments made on the same; and that the defendants be charged with rents and profits. [1] It is apparent from a reading of the bill that this is a proceeding in which the plaintiff seeks to recover possession of numerous distinct parcels of land, some of which it describes and more of which it does not, each of which is held and possessed by one or by some of the numerous defendants claiming title to the same in severalty, not jointly, and that the bill nowhere charges that any of the. parcels, except one, is in excess of the value of $3,000 or that the controversy involved in respect to any of the separate parcels, except one, exceeds $3,000. This being the case, the District Court, as a federal court, was without jurisdiction as to any of the controversies between the plaintiff and respective defendants, except that between it and Maria Ysidora Morales y Morales, which is alleged to exceed $3,000. Indeed, it is admitted by the appellant in its brief that "none of these cases could be tried in the United States Court in P. R. except one," because the several controversies do not involve the jurisdictional amount.

In Walter v. Northeastern Railroad Co., 147 U. S. 370, 373, 13 S. Ct. 348, 349 (37 L. Ed. 206), the court said:

"It is well settled in this court that when two or more plaintiffs, having several interests, unite for the convenience of litigation in a single suit, it can only be sustained in the court of original jurisdiction, or on appeal in this court, as to those whose claims exceed the jurisdictional amount; and that when two or more defendants are sued by the same plaintiff in one suit the test of jurisdiction is the joint or several character of the liability to the plaintiff. This was the distinct ruling of this court in Seaver v. Bigelows, 5 Wall. 208 [18 L. Ed. 593]; Russell v. Stansell, 105 U. S. 303 [26 L. Ed. 989]; Farmers' Loan & Trust Co. v. Waterman, 106 U. S. 265 [1 S. Ct. 131, 27 L. Ed. 115]; Hawley v. Fairbanks, 108 U. S. 543, 2 S. Ct. 846, 27 L. Ed. 820; Stewart v. Dunham, 115 U. S. 61, 5 S. Ct. 1163, 29 L. Ed. 329; Gibson v. Shufeldt, 122 U. S. 27, 7 S.

Ct. 1066, 30 L. Ed. 1083; Clay v. Field, 138 U. S. 464, 11 S. Ct. 419, 34 L. Ed. 1044.

"As illustrative of the rule as applied to cases of joint defendants, it was held in Stratton v. Jarvis, 8 Pet. 4 [8 L. Ed. 846], that, where a libel for salvage was filed against several packages, of merchandise, and a decree was rendered against each consignment for an amount not sufficient in itself to authorize an appeal by any one claimant, the appeal of each claimant must be treated as a separate one, and, the amount in each case being insufficient, this court had no jurisdiction of the appeal of any claimant. A similar ruling was made in Spear v. Place, 11 How. 522 [13 L. Ed. 796]. In Paving Co. v. Mulford, 100 U. S. 147 [25 L. Ed. 591] a bill, filed against two defendants, alleging that each held certificates of indebtedness belonging to the plaintiff, was dismissed on final hearing, and plaintiff appealed, and it was held that, as the recovery, if any, must be against the defendants severally, and as the amount claimed from each did not exceed the requisite sum, this court had no jurisdiction."

See, also, Ogden City v. Armstrong, 168 U. S. 224, 232, 18 S. Ct. 98, 42 L. Ed. 444; Wheless v. St. Louis, 180 U. S. 379, 382, 21 S. Ct. 402, 45 L. Ed. 583; Rogers v. Hennepin County, 239 U. S. 621, 36 S. Ct. 217, 60 L. Ed. 469; Scott v. Frazier, 253 U. S. 243, 40 S. Ct. 503, 64 L. Ed. 883.

Such being the situation, this proceeding could and properly should have been dismissed for want of federal jurisdiction as to all the defendants except Maria Ysidora Morales y Morales.

[2] The question remains whether, on the allegations of the bill, the District Court had jurisdiction in equity as to the controversy between the plaintiff and the defendant Morales.

It is clear that the plaintiff's claim to the right of equitable relief, so far as it is grounded on the prevention of a multiplicity of suits because of numerous defendants, is without foundation and that the question is: Whether a plaintiff, out of possession, claiming title to a distinct parcel of land in the possession and occupancy of the defendant, can maintain a suit in equity to establish its title and recover possession by alleging that the title under which the defendant claims had been decreed to be a dominion title by another court of competent jurisdiction, through fraud perpetrated by the defendant or his predecessors in title, and asking that the decree entered by such court be set aside

as null and void and the record in the registry, based on said decree, be canceled.

In the District Court it was held that this hill could not be maintained, either as a bill of peace, or as a bill quia timet or to remove a cloud upon the title, as the defendants, not the plaintiff, were in possession of the several tracts.

In Holland v. Challen, 110 U. S. 15, 19, 3 S. Ct. 495, 496 (28 L. Ed. 52), it is pointed out that "a bill of peace against an individual reiterating an unsuccessful claim to real property would formerly [in the absence of a statute] lie only where the plaintiff was in possession and his right had been successfully maintained;" that "to entitle the plaintiff to relief in such cases, the concurrence of three particulars was essential: He must have been in possession of the property, he must have been disturbed in its possession by repeated actions at law, and he must have established his right by successive judgments in his favor." Upon these facts appearing, the court would interpose and grant a perpetual injunction to quiet the possession of the plaintiff against any further litigation from the same source; and that to maintain a bill quia timet, or to remove a cloud upon the title of real estate, "it was generally necessary that the plaintiff should be in possession of the property, and, except where the defendants were numerous, that his title should have been established at law or be founded on undisputed evidence or long continued possession."

And in Whitehead v. Shattuck, 138 U. S. 146, 11 S. Ct. 276, 34 L. Ed. 873, where the bill alleged that the plaintiff was the owner in the fee of the premises; that notwithstanding his ownership of the property and his right to immediate possession and enjoyment, the defendants claimed title to it and were in its possession, holding the same openly and adversely to him; that their claim of title was without foundation in law or equity; and that it was made in fraud of the rights of the plaintiff, and a demurrer was interposed on the ground, among others, that it appeared from the bill that the plaintiff had a plain, speedy, and adequate remedy at law, by ejectment, to recover the real property described, and that it showed no ground for equitable relief, the Supreme Court held that the ruling of the court below sustaining the demurrer was right; that, although the Code of Iowa authorized "an action to determine and quiet. the title to real property [to] be brought by any one having or claiming an

interest therein, whether in or out of possession of the same, against any person claiming title thereto, though not in possession," and such statute had been construed by the courts of the state as authorizing a suit in equity to recover possession of real estate from the occupant, it did not enlarge the equity jurisdiction of the federal courts in that state when the defendant was in possession, as in such case there was a plain, adequate, and complete remedy at law, and that such a bill could not be maintained in the federal court.

Furthermore, if the District Court had jurisdiction in equity and in this proceeding the plaintiff could attack collaterally the judgment of the District Court of San Juan awarding dominion title to Morales, on the ground that it was procured by fraud, it is questionable whether it would not even then find it necessary to institute proceedings in the District Court of San Juan for a nullification of the judgment of that court and for an order for the cancellation of the record in the registry based thereon, even though it could be here found that the judgment and record of title in the registry were the result of the defendant's fraud.

The decree of the District Court is af

firmed, with costs to the appellees, subject, however, to the right of the appellant, if it desires, to transfer the action, so far as it relates to Maria Ysidora Morales y Morales, to the law side of the court as permitted by equity rule 22.

POY COON TOM v. UNITED STATES. (Circuit Court of Appeals, Ninth Circuit. June 29, 1925.)

No. 4536.

Criminal law 407(1), 417(16)—An unsigned

letter written to accused and found in his possession, not admissible.

In prosecution for violation of the Harrison Narcotic Act (Comp. St. §§ 6287g-6287q), an unsigned letter written to accused and found in his possession, containing references indicating that accused was a trafficker in narcotics, held inadmissible, when not answered or acted upon, and attempt of accused to destroy letter could not render it so.

In Error to the District Court of the Unit. ed States for the Northern Division of the Northern District of California; John S. Partridge, Judge.

Poy Coon Tom was convicted of violating the Harrison Narcotic Act, and he

missible for the purpose of showing an adof the plaintiff in error, in the absence of mission or an implied admission on the part proof tending to show that the letter was

answered or otherwise acted upon.

"The fact that an unanswered letter or

other paper is found in the custody of a party, but not acknowledged by him, is not

RUDKIN, Circuit Judge. This is a writ of error to review a judgment of conviction under the Harrison Narcotic Act (Comp. St. §§ 6287g-6287q). The plaintiff in error and one Hughes were jointly indicted for selling, dispensing, and distributing narcotic drugs, not in or from the original stamped package. The testimony on the part of the government tended to show that Hughes made several sales of narcotic drugs to an informer, and that the drugs so sold were procured from the plaintiff in error, Poy Coon Tom. In the course of the trial, the following letter, found in the possession of the plaintiff in error upon a search of his home, was offered in evidence against him, and was admitted over objection and exception:

"Dear friend Tom: Come on over this afternoon. No one will see you come in. So you come in the back way. I will watch for you. I want to see you on business. I am giving you something so come this afternoon-so we are alone and can talk, I want to see you about something. I may go to the hospital to-morrow. I am so worried I can hardly write now. Tom, do as I tell you. If you don't come this afternoon I cannot give you anything. Bring about one M and 2 C with you. Now, be sure to come, for I may not get a chance to talk with you soon again; and I want to pass you on to something and cannot very well, unless we are alone. Come any time after one o'clock. Now, do it. If you don't, you may be sorry."

The prosecuting officer stated to the court that M and C referred to morphine and cocaine, and that his purpose in offering the letter was to show that the plaintiff in error was a known trafficker in narcotics, and that he had not only sold narcotics to the informer in question, but to others as well.

We do not understand upon what principle the letter was admitted or was competent. It was manifestly not admissible as the unsworn declaration or statement of the

evidence against him. Were it admitted, an innocent man might, by the artifice of others, be charged with a prima facie case of guilt, which he might find it difficult to repel." Wharton's Crim. Ev. (10th Ed.) p. 1411.

"It is also urged that the letter was admissible as a tacit admission by the accused of the truth of its statements, it having been proved that the accused did not reply to it. Admissions, of course, may be inferred from silence as well as from express statements, but it has been uniformly held by the courts that the failure to reply to a letter is not to be treated in a criminal or in a civil action as an admission of the contents of the letter." Packer v. United States, 106 F. 906, 910, 46 C. C. A. 35, 39.

"The letters, however, if properly identified, would not of themselves authorize any inference against the defendants; they were only the acts and declarations of others; and, unless adopted or sanctioned by the defendants, by some reply or statement, or by some act done in pursuance of their suggestions, they ought not to prejudice the defendants. Letters addressed to an individual, and received by him, are not to have the same effect as verbal communications. Silence, in the latter case, may authorize the inference of an assent to the statement made, but not equally so in the case of a letter received but never answered, or acted upon." Commonwealth v. Eastman, 1 Cush. (Mass.) 215, 48 Am. Dec. 596.

"The maxim [qui tacet consentire videtur] had also been applied, as between the parties, to certain mercantile dealings, as where an account current was sent to the party by letter, and no objection made to it within a given time, established by convenience or by commercial usage.

But it could

not, in principle, be applicable to facts stated in a letter which the party was not bound, nor interested, to answer. It would be placing a man entirely at the mercy of others, if he was to be bound by what others chose to assert, in addressing letters to him. In no sense, could his silence be considered an

admission of such facts." 1 Parker Cr. R. (N. Y.) 17. See, also, United States v. Crandell, Fed. Cas. No. 14885.

The government contends that the act of the plaintiff in error in attempting to destroy the letter rendered it competent. But the letter was received in evidence for an entirely different purpose before the attempted destruction was shown, and the use actually made of it fully justified the fears of the plaintiff in error. His attempt to prevent the government from making such unauthorized use should not now be urged against him to his prejudice. If the letter itself was not competent evidence, the attempt to destroy it could not make it so.

The admission of the letter was therefore prejudicial error. We find nothing in the remaining assignments calling for comment or consideration.

The judgment is reversed, and the case is remanded for a new trial.

5. Criminal law 1178 Generally assign

ments not discussed in brief not considered. Generally assignments of error which are not discussed in brief will not be considered.

In Error to the District Court of the United States for the Southern Division of the Northern District of California; John S. Partridge, Judge.

Lee Tung was convicted of unlawfully receiving, buying, and facilitating transportation of an opium preparation imported contrary to law, and he brings error. Affirmed.

Gilman & Harnden, of Oakland, Cal., for plaintiff in error.

Sterling Carr, U. S. Atty., and T. J. Sheridan, Asst. U. S. Atty., both of San Francisco, Cal.

Before GILBERT, HUNT, and RUDKIN, Circuit Judges.

RUDKIN, Circuit Judge. The indictment in this case contains two counts, but there was an acquittal under the first count, and we are only concerned with the second. The second count charges that the defendant did unlawfully, knowingly, feloniously, and fraudulently receive, conceal, buy, sell, and facilitate the transportation and concealment after importation of a certain derivative and preparation of opium, to wit, four cards and one jar of prepared smoking opium, containing an approximate total of 42 grains, which said prepared smoking opium, as the said defendant then and there well knew, had been imported into the United States contrary to law.

[1, 2] The assignments of error discussed in the brief of counsel for the plaintiff in error challenge the sufficiency of the second count of the indictment, the sufficiency of the testimony to warrant the submission of the case to the jury, and certain instructions given by the court on the question of entrapment. The second count is sufficient in law (Wong Lung Sing v. United States [C. C. A.] 3 F. [2d] 780), and the testimony on the part of the government was ample to carry the case to the jury. Whether a case of entrapment was made out presented a

returned for reinstruction.

Where, after retiring, the jury returned and submitted questions, a general exception to re

tion of law for the court. The plaintiff in error requested certain instructions on the question of entrapment, which were not given