for the ship, if adopted, should be followed to its logical conclusion. After there has been an accounting of liabilities and a judicial sale, the ship is no longer subject to attachment. If the bond is a complete substitute, it should be similarly exempt. It is true that the debts of appellees were among those at first covered by the bond; but the conduct of appellees does not call for any relaxation of the customary rules which confine the obligee within the limits of his contract. The creditors' bill was filed and the receiver appointed September 24, 1920. On JanuOn January 21, 1921, libels in admiralty were filed by the Pittsburg Coal Company (No. 2736) and others. Others were filed from time to time until May 14, and doubtless warrants of arrest were issued. After May 14, when this bond was filed, other intervening libels in this same case were filed from time to time until June 13. Thereafter nothing was done until December 17, when the boat was returned to the charterer.

On that date a monition was issued in 2736, directing "all persons claiming" to appear on a day named and "make their claims." Lien creditors holding $53,000 of claims appeared as libelants and were included in the final decree; but this decree, instead of providing for the sale of the boat, found the present appellants liable, as sureties, upon the present bond, and directed them to pay this $53,000, which they did. Appellees, with $14,000 of similar claims, did not appear. Early in March appellees asked for process of arrest of the boat. March 29 these applications were denied, because it was thought the right of action was against the bond. The sale took place on April 3, and these petitions against the bond were filed on April 8. From May 14, 1921, when the bond was given, until January, 1922, when the final decree in 2627 was made, and further until after April 3, when the boat was sold, appellees did nothing as against the bond. On the contrary, they filed their claims in the equity case before the master; and although we do not find therein any waiver of whatever rights under the bond they might have, it is significant that they did not seem to construe the bond as they do now.

Upon the whole, we are well satisfied that independent remedies under this bond would not survive a sale of the boat in admiralty proceedings, in situations where there had been, before sale, ample opportunity to join and prove the claim. Does it make any difference that, after the claims had been proved in admiralty, it was decided that the ac10 F. (2d)-2

tual sale should take place in the equity suit, under the combined foreclosure and creditor's bill? We think not. The reason for exemption from further in rem liability was the same, and those considerations which tend to conform the bond to the ordinary admiralty procedure were the same. The form which the sale took, as a matter of convenience, ought not to be important.

We are not impressed with the claim of estoppel dependent on the price which the sureties paid when they purchased the boat at the sale. They had then paid $53,000 of lien claims because of their bond liability, and, in order to get the boat at the sale, they were willing to pay also some $20,000 of prior cost and expenses. If the appellees' $14,000 had before then been enforced against the appellants and their investment had become $87,000, it is not probable that they would have taken any different action about assuming and paying the prior liens.

We are compelled to think that the decree should be set aside, and that the petition of appellees, filed in the court below, should be dismissed.

SHERMAN v. UNITED STATES. (Circuit Court of Appeals, Sixth Circuit. January 6, 1926.)

No. 4306.

1. Intoxicating liquors 22, New, vol. 8A Key-No. Series-Congress may prohibit all sales of intoxicating liquor, if suitable provision is made for nonbeverage sales.

Congress may prohibit all sales of intoxicating liquor, whether for beverage purposes beverage sales, consistent with purpose of conor not, if suitable provision is made for nonstitutional amendment.

2. Criminal law 26-Mere intent to violate law, not followed by actual violation, is not a crime.

Under general principles, except in conspiracy, mere intent to violate law, not followed by actual violation, is not a crime.

3. Intoxicating liquors 131-Sale of medicinal preparation to purchaser, who intends to use it as evidence, not an offense.

Under National Prohibition Act, tit. 2, § 4 (Comp. St. Ann. Supp. 1923, § 101381⁄2b), forbidding sale of medicinal preparations for beverage purposes, or under circumstances from which seller might reasonably deduce purchaser's intention to so use them, purchaser must intend beverage use, and sale to one who purchased for use as evidence did not sustain seller's conviction.

In Error to the District Court of the United States for the Western District of Michigan; Clarence W. Sessions, Judge.

Augustus H. Sherman was convicted of violating the National Prohibition Act, and he brings error. Reversed and remanded for new trial.

Herbert L. Parsille, of Sault Ste. Marie, Mich., for plaintiff in error.

Edward J. Bowman, U. S. Atty., of Grand Rapids, Mich. (Howard A. Ellis, Asst. U. S. Atty., of Grand Rapids, Mich., on the brief), for the United States.

Before DENISON and DONAHUE, Circuit Judges, and HICKENLOOPER, District Judge.

or

PER CURIAM. Sherman sold to Oleson a four-ounce bottle of Jamaica ginger. Section 4 of title 2 of the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 101382b) provides that certain groups of medicinal preparations (by definitions effectively including this Jamaica ginger), although alcoholic and intoxicating, shall not be subject to the provisions of the act, but continues: "Any person who shall knowingly sell [such preparations] for beverage purposes, under circumstances from which the seller might reasonably deduce the intention of the purchaser to use them for such purposes, shall be subject to the penalties [of this act]." Because of selling this preparation to Oleson, Sherman was indicted on two counts-one for having knowingly sold it; the other for having sold it under circumstances from which he should reasonably have deduced Oleson's intention to use it for a beverage. He was convicted on both. The undisputed fact is that Oleson did not use this particular purchase for a beverage, and never intended to. He bought it at the request of an officer for the sole purpose of turning it over to the officer, for evidential and not for drinking purposes, and this was done. So we are called upon to declare the intent of the law as applicable to such a situation.

It is urged that there is no evidence that, as to this particular sale, Sherman should have deduced that it was Oleson's intention to use his purchase to quench a thirst rather than to subdue an ache. The majority of the court find sufficient evidence to this effect. This conclusion leaves the conviction best supported, if supportable at all, by the "circumstances from which" clause, and presents the question whether the seller's intent or reason to believe, which can make him guilty,

may be merely his independent purpose or conclusion, or whether it can exist only as collateral to the purchaser's actual intent. We say that his conviction is best supported by the latter clause, because, as to the former, "knowingly sell," it is difficult to conceive knowledge of a thing which does not exist, while the "circumstances under which" clause is, if read literally, open to be construed as For a concrete example of this construction, wholly satisfied by the seller's state of mind. ed the Jamaica ginger for medicine, and inwe observe that, if a purchaser really needtended so to use it, and did so use it, but if his appearance or answers justified the inference that he probably wanted to drink it, the sale would be a crime by the seller. Did Congress so intend?

[1] The difference between such a sale and an ordinary one of intoxicating liquor is fundamental. The constitutional power is clear to prohibit broadly all sales of intoxicating liquor, whether for beverage purposes or not, provided suitable provision is made for such nonbeverage sales as are consistent with the purpose of the constitutional amendment, and so we find section 3 (Comp. St. Ann. Supp. 1923, § 10138/2aa) containing a general and initial prohibition of all sales of intoxicating liquor. However, medicinal preparations are not within the ordinary definition of intoxicating liquor, and perhaps not within the definition of section 1 (Comp. St. Ann. Supp. 1923, § 101382), and to clear the doubt, if there is any, the first part of section 4 exempts them wholly from the operation of the act. Up to this point, the situation, then, is that the sale of what is commonly called intoxicating liquor is generally forbidden and the sale of these medicinal preparations is generally permitted. Thus the two transactions are approached from opposite viewpoints, and it would seem that the burden of establishing the exception is oppositely imposed.

[2, 3] It is contrary to the general principles of criminal law-except in conspiracy—that the mere intent to violate the law, not followed by actual violation, should be a crime. We think the ultimate thing at which this part of section 4 was aimed was such intoxication as might be caused through the purchase of these preparations by one who intended to use them to drink, and we conclude that participation by the seller in this actual intent by the purchaser furnishes the only reasonable basis for transforming the otherwise permitted sale into a prohibited one. It is the reasonable and consistent construction of this part of the statute to regard it

ited from his parents there, because of the fact that he had not been a resident of Germany since 1892, and, according to German law, had ceased to be a German subject in 1900; that in August, 1919, he went to Norway, and there remained until December, 1920, when he went by steamer to the kingdom of Spain; that on divers occasions between the time of his arrival in Norway and the last-mentioned date he applied for a legal and proper visa to return to the United States, but such visa was refused on the ground that he had been declared an alien enemy, whose entrance into the United States was forbidden by law; that on the 6th day of October, 1917, Thomas Miller, Custodian of Alien Enemy Property, seized certain described property belonging to him; that he has demanded a return of such property in the manner prescribed by law, but that such return has been refused; that the appellant was at no time an alien enemy of the United States, and that he has no plain, speedy, or adequate remedy at law.

[1] In addition to the foregoing, the bill of complaint quotes at length from the convention between the United States and other countries, for the amelioration of the condition of the wounded of armies in the field, proclaimed by the President under date of August 3, 1907 (35 Stat. 1885). Of this, of course, the courts will take judicial notice. Articles 9, 12, and 13 of that convention are as follows:

"Art. 9. The personnel charged exclusively with the removal, transportation, and treatment of the sick and wounded, as well as with the administration of sanitary formations and establishments, and the chaplains attached to armies, shall be respected and protected under all circumstances. If they fall into the hands of the enemy they shall not be considered as prisoners of war. "These provisions apply to the guards of sanitary formations, and establishments in the case provided for in section 2 of article 8."

"Art. 12. Persons described in articles 9, 10, and 11 will continue in the exercise of their functions, under the direction of the enemy, after they have fallen into his power. "When their assistance is no longer indispensable they will be sent back to their army or country, within such period and by such route as may accord with military necessity. They will carry with them such effects, instruments, arms, and horses as are their private property.

"Art. 13. While they remain in his power, the enemy will secure to the personnel

mentioned in article 9 the same pay and allowances to which persons of the same grade in his own army are entitled."

Section 2 of the Act of October 6, 1917 (40 Stat. 411 [Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 31152aa]) defines the term "enemy" as: "Any individual, partnership, or other body of individuals, of any nationality, resident within the territory (including that occupied by the military and naval forces) of any nation with which the United States is at war.

Section 9 (section 31152e) provides that any person, not an enemy, or ally of an enemy, claiming any interest, right, or title to any money or other property which may have been conveyed, transferred, assigned, delivered, or paid to the Alien Property Custodian, and held by him or by the Treasurer of the United States, may institute suit in the District Court of the United States for the district in which such claimant resides, against the Alien Property Custodian or the Treasurer of the United States, to establish the interest, right, title, or debt so claimed, after complying with certain conditions precedent with which we have no present

concern.

[2] The enemy character of the appellant is the only question for consideration on this appeal. If an enemy within the meaning of the law he may not maintain this suit under the express provisions of the Trading with the Enemy Act; otherwise, he may. And, first, was he a resident of Germany, or of territory occupied by the military and naval forces of that country? It would serve no purpose to review the multiplicity of decisions construing the term "resident," or "residence," in statutes relating to attachment, bankruptcy, divorce, elections, executors and administrators, guardian and ward, homesteads, insolvency, limitation of actions, paupers, naturalization, and schools. ""Residence' as used in various statutes has been considered synonymous with 'domicile,' but of course this depends upon the intent of the particular statute as ascertained by construction of its provisions. The terms are not necessarily synonymous. Generally, where a statute prescribes residence as a qualification for the enjoyment of a privilege, or the exercise of a franchise, and whenever the terms are used in connection with subjects of domestic policy, domicile and residence are equivalent." 19 C. J. 397.

What, then, did Congress mean by the term "resident," as employed in the Trading with the Enemy Act? Under a well-settled rule of international law, a foreigner living