appeal without joining the other parties enjoined, or having a severance as to them, as its interest was separate. Winters v. United States, 207 U. S. 564, 28 S. Ct. 207, 52 L. Ed. 340; Hightower v. American Natl. Bank (C. C. A.) 276 F. 371. The motion to dismiss the appeal is denied. [2] As above indicated, the record showed that at the time of the filing of the bankruptcy petition, and at the time of the institution of appellant's foreclosure suit, the property covered by the mortgage to appellant was not in the bankrupt's possession, but was in the possession of a stranger to the bankruptcy proceeding, under an absolute conveyance, which was not attacked. Nothing in the record indicated the invalidity of the mortgage to appellant. In the situation disclosed, the enforcement of that mortgage was not subject to be interfered with by the bankruptcy court, except in a plenary suit challenging the validity of that mortgage as against the bankrupt's creditors. Bankruptcy Act, § 70e (Comp. St. § 9654); Collier on Bankruptcy (12th Ed.) 1072, 1178. It follows that the decree appealed from was erroneous. That decree is reversed. HANGING ROCK IRON CO. v. P. H. & F. M. ROOTS CO. UNION FURNACE CO. v. SAME. (Circuit Court of Appeals, Seventh Circuit. October 30, 1925. Rehearing Denied December 9, 1925.) Nos. 3552, 3553. 1. Contracts 313(1)-Breach, not persisted in, accepted, or relied on, inconsequential. Breach of contract, not persisted in, accepted, or relied on by opposite party, is of no consequence. 2. Sales182 (1)-When breach of contract occurred, and whose it was, held fact questions for jury. When breach of contract by failure to specify place of delivery or failure to make deliveries occurred, and whose it was, held fact questions for jury. 3. Appeal and error 1064 (1)—Instruction as to when breach of contract occurred held reversible error. Instruction that sellers' breach of contracts providing for substantially equal monthly deliveries occurred at end of each month held reversible error, as extremely harmful to sellers, in view of state of market at such time and thereafter. there was a provision in each contract for substantially equal monthly deliveries of iron, and that the contract should be treated as separate for each installment. The price fixed was f. o. b. cars seller's furnace. There was no provision as to place of delivery, but there was evidence that defendant had two places to which it had theretofore had iron, purchased from one or both of plaintiffs, shipped, and there was some evidence that it had been the practice for defendant to specify the place of delivery. No place of delivery was thereafter given, and no deliveries on the contracts were made, save of a single carload on one of the contracts, ordered delivered and paid at contract price about March 23, 1922, when market price was about half of contract price. [1] The evidence, which is substantially if not wholly without contradiction, is that until April 27, 1921, all parties treated the contracts, except as to times of delivery, as subsisting, valid, and binding. It needs no authority to support the proposition that a breach, not persisted in, and not accepted or relied upon by the opposite party, is of no consequence. Such was the substance of the requests for instructions made by plaintiffs, and it was error to refuse them. [2, 3] The court instructed the jury, "The breach occurred at the end of each of these months" (meaning July to December, 1920, inclusive). This was likewise error, because, under the circumstances, it was a question of fact as to when a breach, that was relied on, occurred, and whose it was, and extremely harmful to plaintiffs, in view of the state of the market then and thereafter. The judgment in each case is reversed, and the cause remanded. v., ) WARNER v. WALSH, Collector of Internal of the tax paid to the collector upon the Revenue. (District Court, D. Connecticut. January 18, 1926.) No. 2849. Internal revenue 7-Income from securities bequeathed to trustee held taxable income. Where securities were bequeathed to trustees, with direction that income therefrom to certain limit should be paid annually to testator's widow, during her lifetime, held, money so paid was taxable income, and not exempt bequest or legacy. At Law. Action by Eva F. Warner against James J. Walsh, Collector of Internal Revenue. On demurrer to the complaint. Demurrer sustained. Edward Holloway, of New York City, for plaintiff. John A. Danaher, Asst. U. S. Atty., of Hartford, Conn., for defendant. THOMAS, District Judge. This matter is before the court on defendant's demurrer to plaintiff's complaint, which alleges that in 1918 the plaintiff was in receipt of $50,000 from one D. H. Warner, who was a trustee under the will of one I. De Ver Warner, deceased, and that under the provisions of the will this sum was to be paid annually to the plaintiff during her life. It is further alleged that the plaintiff duly prepared her income tax return on the 15th day of March, 1918, for the taxable year ending December 31, 1917, and that the defendant, as collector of internal revenue for the district of Connecti cut, thereupon levied and assessed a tax of $2,517.93, which the plaintiff paid on June 3, 1918. As the basis for a second count, the plaintiff alleges a similar state of facts with reference to a tax of $7,038.98 imposed and paid for the year 1918. The will, under which the plaintiff was paid annually, bequeathed in substance certain securities to trustees, and directed that from the interest, income, and increase thereof $50,000 should be paid annually to the plaintiff, who was the widow of the testator, such annual payment to continue during her lifetime. It further provided that, in the event that the income was insufficient to pay this sum the trustees take from the principal a sum sufficient to make up the deficiency, and that the annuities so bequeathed should be taken and accepted by the plaintiff in lieu of the statutory rights which the widow would have in the distribution of the testator's estate. ground that the tax was paid upon a bequest or a legacy, and that it was therefore exempt from taxation. The plaintiff submitted at oral argument and in her brief, an elaborate discussion in support of her contention. However meritorious the logic of the plaintiff's position may be, the fact is that the court feels itself foreclosed from any consideration of the same by reason of the controlling decision of the Supreme Court of the United States in Irwin v. Gavit, 268 U. S. 161, 45 S. Ct. 475, 69 L. Ed. 897. There the suit was brought to recover a tax levied under conditions identical with those in the case at bar, and Mr. Justice Holmes said: "The question is whether the sums receivN. Brady in 1913, 1914, and 1915 were ined by the plaintiff under the will of Anthony come and taxed. The will, admitted to probate August 12, 1913, left the residue of the estate in trust to be divided into six equal parts, the income of one part to be applied so far as deemed proper by the trustees to the education and support of the testator's granddaughter, Marcia Ann Gavit, the balance to be divided into two equal parts and one of them to be paid to the testator's sonin-law, the plaintiff, in equal quarter yearly payments during his life. But on the grandthe fund went over, so that, the granddaughdaughter's reaching the age of 21 or dying tiff's interest could not exceed 15 years. The ter then being 6 years old, it is said the plaincourts below held that the payments received were property acquired by bequest, were not income and were not subject to tax. "The courts below went on the ground that the gift to the plaintiff was a bequest and carried no interest in the corpus of the fund. We do not regard those considerations as conclusive, as we have said, but if it were material a gift of the income of a fund ordinarily is treated by equity as creating an interest in the fund. Apart from technicalities we can perceive no distinction relevant to the question before us between a gift of the fund. for life and a gift of the income from it. The fund is appropriated to the production of the same result whichever form the gift takes. Neither are we troubled by the question where to draw the line. That is the question in pretty much everything worth arguing in the law. "We are of opinion that quarterly payments, which it was hoped would last for 15 years, from the income of an estate intended for the plaintiff's child, must be regarded as This suit is brought to procure a refund income within the meaning of the Constitu tion and the law. It is said that the tax laws should be construed favorably for the taxpayers. But that is not a reason for creating a doubt or for exaggerating one when it is no greater than we can bring ourselves to feel in this case." It is evident, from an examination of the points presented by counsel in that case, that all of the considerations advanced in that case were before the Supreme Court. Its opinion was based squarely upon the proposition that the gift of the income of a fund for life is equivalent to a gift of the use of the fund for life. It is true that counsel for plaintiff, in his attempt to distinguish the Irwin Case from the case at bar, suggests that the reason why the Supreme Court reached its conclusion was because it found itself under a moral necessity to do so in order to prevent a large block of income from escaping taxation. This rather naive exposition of judicial motives may or may not resemble the fact, but this court can only conclude that the motive of the Supreme Court in construing any statute is the common motive of enforcing the law in accordance with the meaning and intendment of the text as the court found it. Nor does the emphasis laid by the plaintiff on the question as to who should pay the tax, whether the trustee or legatee, impress us. There is no suggestion in this case that the tax levied by the government was paid by the trustee and that the plaintiff is being subjected to double taxation. Since the pleadings do not raise this question, further consideration is unnecessary. The demurrer is sustained. Decree accordingly. cart denied 1270 res 657, 46 Sup Ct. 354, 12 70*Ed. 784. CHAPMAN v. SCOTT, Warden. 3. Prisons 13-Attorney General may transfer convict from federal to state prison, without notice to or consent of convict. Attorney General need not notify convict or obtain his consent to transfer from federal to state prison, under Rev. St. § 5546 (Comp. St. § 10547), on ground, inter alia, that place of confinement was not sufficient to secure convict. 4. Prisons 13-District Court may not question administrative act of Attorney General In transferring federal prisoner. District Court, except possibly on showing of gross abuse of discretion, may not question purely administrative act of Attorney General in transferring federal prisoner, under Rev. St. § 5546 (Comp. St. § 10547). 5. Pardon 8-"Commutation" is operative without acceptance by convict; "pardon." Every pardon involves a grant, and cannot be imposed against grantee's will, but a commutation is merely a cessation of the exercise of sovereign authority, and does not obliterate guilt nor restore civil rights, and need not be accepted by convict to be operative. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Commute-Commutation; Pardon.] (District Court, D. Connecticut. December 14, 8. Prisons 13, 15-Prisoner could not object 1925.) No. 2997. 1. Criminal law 105-Failure to challenge jurisdiction of person on appearance is equivalent to consent. Competency of court to adjudicate subjectmatter may always be questioned, but failure to challenge jurisdiction of person on appearance is equivalent to consent. 2. Criminal law 99-Courts of criminal jurisdiction need not inquire how prisoner came within reach of their mandates. Courts of criminal jurisdiction need not inquire how prisoner came within reach of their mandates, but for jurisdictional purposes it is sufficient that he is there. because federal government surrendered custody. 10 F.(2d) 156 ton, D. C. Habeas Corpus. Petition by Gerald "Offices of the Attorney General, WashingChapman against Henry K. W. Scott, Warden. Petition denied, writ dismissed, and relator remanded to custody of warden. "48-762–19 January 24, 1925. "Mr. H. K. W. Scott, Warden Connecticut State Prison, Wethersfield, Connecticut— Sir: By virtue of the power vested in me by law, I have decided to transfer Gerald Chapman from the United States penitentiary, Atlanta, Georgia, to your institution. This letter will be delivered to you by the warden of the Atlanta institution, together with Chapman's original warrant of com mitment, properly indorsed to show loss of time, if any, for misconduct on the part of "Harlan Stone, Attorney General." The transfer having been effected, a writ of habeas corpus was issued on February 13, 1925, by the superior court for Hartford county, upon the application of Hugh M. Alcorn, state's attorney for Hartford county, to the issuance of which the United States district attorney for the district of Connecticut consented in open court, by which writ the warden of the Connecticut state prison was required to produce Chapman before said court to answer to the in dictment which had been found against him In August, 1922, Gerald Chapman was convicted of the crime of robbery of mail matter, and of having placed the life of a mail carrier in jeopardy, and on August 23, 1922, was sentenced by the United States District Court for the Southern District of New York to serve a term of 25 years in the federal penitentiary in Atlanta. He was then conveyed to Atlanta and began to serve his sentence on August 25, 1922. He escaped from that penitentiary on March 27, 1923, and was captured the next day. Following his capture he was confined in a hospital in Athens, Ga., from which institution he also escaped on April 4, 1923, and was at large for a period of about a year and nine months. On January 18, 1925, he was recaptured at Muncie, Ind., from which place he was returned to the Atlanta penitentiary, "Department of Justice, Washington, D. C. on January 22, 1925. It was while he was at large after his second escape that he committed the crime for which his life became forfeited to the people of the state of Connecticut. On January 24, 1925, two days after his return to Atlanta, the Attorney General of the United States ordered his transfer from that institution to the Connecticut state prison at Wethersfield, which appears in the following letter. "48-762-24. HSR:DJ. "February 9, 1925. "John Buckley, Esq., United States Attorney, Hartford, Conn.-Sir? The department is advised that State's Attorney Hugh M. Alcorn will make an application to his court for a writ of habeas corpus requiring the production of Gerald Chapman, now a federal prisoner in the state prison, in order that said Chapman may be placed upon trial under indictment charging him with murder. You are authorized to consent to the issuance of such writ. Of course all the expense involved in such habeas corpus proceedings and the removal and care of Chapman should be borne by the state authorities. "Respectfully, for the Attorney General, While the record shows that, when the relator was transferred from the federal penitentiary in Atlanta to the Connecticut state prison in Wethersfield, he was not informed of the purpose of the transfer, it nowhere appears that any objection was made by the petitioner or by his counsel to the issuance of the writ of habeas corpus in the state court or to the production of Chapman in said superior court to answer to the indictment charging murder in the first degree, nor was any objection or protest entered or filed to the jurisdiction of the state court over and of the body and person of the relator, or to the jurisdiction of the state court to hear and determine the issues raised by the indictment and the plea of not guilty which was entered on February 13, 1925. The relator was tried upon the issues raised by the indictment and his plea of not guilty, and on April 4, 1925, the jury rendered a verdict of guilty of murder in the first degree, following which the court rendered judgment accordingly and sentenced the relator to be hanged on June 25, 1925. Thereupon Chapman appealed to the Supreme Court of Errors of the state of Connecticut, and the conviction and sentence were there affirmed, in an able and exhaustive opinion written by the learned Chief Justice, in which opinion all of the justices concurred. In this opinion (103 Conn. 453, 130 A. 899), which was filed on November 5, 1925, it is interesting to note that Chief Justice Wheeler observed that "seldom is a charge of this character so completely and conclusively proven." By successive reprieves by the Governor of the state of Connecticut, the date of execution has now been deferred to March 3, 1926. On November 23, 1925, the President of the United States executed and issued the following document: "Calvin Coolidge, President of the United States of America. "To All to Whom These Presents Shall Come-Greeting: "Whereas, Gerald Chapman was convicted in the United States District Court for the Southern District of New York of rob bery of mail matter and placing the life of the mail carrier in jeopardy, and was sentenced August twenty-third, 1922, to imprisonment for twenty-five years in the United States penitentiary at Atlanta, Georgia; and "Whereas, the said Gerald Chapman began his sentence in the Atlanta penitentiary on August twenty-fifth, 1922, and escaped therefrom March twenty-seventh, 1923, was recaptured March twenty-eighth, 1923, and escaped from the Athens (Georgia) Hospital and returned to the Atlanta penitentiary on April fourth, 1923, and was recaptured January twenty-second, 1925; and transferred to the Connecticut state prison "Whereas, the said Gerald Chapman was at Wethersfield, Connecticut, by an order signed by the Attorney General; and dated January twenty-fourth, 1925, duly "Whereas, it has been made to appear to me that the ends of justice will be served by a commutation of the sentence in this case: vin Coolidge, President of the United States "Now, therefore, be it known that I, Calof America, in consideration of the prem ises, divers other good and sufficient reasons me thereunto moving, do hereby commute the sentence of the said Gerald Chapman to the term of imprisonment already served. "In testimony whereof I have hereunto signed my name and caused the seal of the Department of Justice to be affixed. "Done in the District of Columbia this twenty-third day of November, in the year of our Lord one thousand nine hundred and twenty-five, and of the independence of the United States the one hundred and fiftieth. "[Seal of the Department of Justice.] "Calvin Coolidge. "By the President: "Jno. G. Sargeant, Attorney General." The executive order above recited was of fered to the relator in his cell in the Connecticut state prison by the warden, but the relator absolutely refused to accept the document or the commutation of his federal sentence. The outline of facts above set forth comprehends all of the relevant and material facts. I now come to a consideration of the from. These propositions do not appear in legal propositions sought to be educed thereany sequential order, nor are they all expressed with definitive adequacy. Nevertheless an attempt will be made to arrange them in some logical order. [1-3] To begin with, the jurisdiction of the state court to try the relator is now and for |