words "while riding in" were meant to cover and did cover a situation such as we now have.

[4] Automobile risks, automobile dangers, automobile occupants' conduct, were not new subjects of insurance study when this policy was executed. Indeed, an insurance company's knowledge of the subject, its wide experience with accidents and human conduct at such times, its commercial instincts and its desire to get business, would assure it that, if it wrote into its policy or said to an inquiring customer, "This policy does not cover the case of leaping from a car when car control is lost," no one would pay an extra premium for an indemnity that so failed to indemnify. If this company did not intend that one who jumped from a machine was not to be protected, it could have made that unambiguous in a few words. It considered the matter of exceptions, for it inserted four. If by its omission to do so it has couched the policy in such terms that reasonable men could reasonably contend, it applied to and covered a situation such as is now before us, we are justified under the settled rule of construction in resolving that ambiguity against the company and giving the policy such construction. To do otherwise would be to deprive one riding in a car of protection from one of the grave dangers incident thereto.

So holding, we regard the case as one requiring the court itself to construe and apply the policy, and in the light of such construction to hold that, if the case is one where control of a car was lost, and that while lost an occupant suffered injury, the indemnity applied, whether he was thrown from the car by physical force, or, exercising ordinary care and prudence, he leaped from the car under mental force impelled by fright or the instinct of self-preservation. We therefore reverse the case, and remand it to the court below for further proceedings, in accord with this opinion.

The conclusion we have reached is in accord in principle with the authorities, for in citing the case of Lund v. Tyngsboro, 11 Cush. (Mass.) 563, 59 Am. Dec. 159, as supporting its opinion, the Supreme Court of the

United States, in Insurance Co. v. Boon, supra, said: "In [Lund] v. [Tyngsboro],

where it appeared that a traveler had been injured by leaping from his carriage, exercising ordinary care and prudence, in consequence of a near approach to a defect in a highway, the town was held liable, though the carriage did not come to the defect. The defect was regarded as the actual, the dominating, cause. And in this court similar doctrine has been asserted."

WOOLLEY, Circuit Judge (dissenting). I am constrained to dissent from the judgment of the court for reasons which I shall state very briefly.

The action is not in tort; it is on a contract. The contract is one of insurance. Like all contracts it should be construed as the parties wrote it. It provides in terms for indemnity to the insured in the event of his sustaining "bodily injuries through external, violent and accidental means, while he is riding in

a private automobile." The trial court submitted to the jury an issue of fact, namely; whether the insured sustained his injuries by being thrown from the car or by voluntarily jumping out, and, construing the contract as it reads, instructed them that if they should find the latter fact their verdict must be for the defendant. The evidence was meager, a doubtful emergency, and the discovery of the insured's body about three hundred feet back from the place where the car was stopped. The verdict for the defendant was a finding that the insured jumped. On this finding I cannot see how his injuries were sustained "through external, violent and/or accidental means while he (was) riding in" a car-the only three risks in a restricted situation insured against. Nothing of an external, violent or accidental nature happened to the insured until he left the car and assumed hazards which, as I read it, the policy does not cover. To embrace these hazards the contract of insurance must be expanded by words which the parties did not use and be given a meaning which its words do not import. In refusing to do this, the learned District Judge, I think, was right.

2. Bankruptcy

446-Question of authority to enter order not considered on petition of one not adversely affected.

Question of authority of referee in bankruptcy before adjudication to limit time to file reclamation petitions will not be considered; no right of petitioner, so far as disclosed, being adversely affected, he not alleging that he was thereby prevented from filing any such petitions, and it appearing that he did file two within the time limited.

Appeal from and Petition to Revise the Proceedings of the District Court of the United States for the District of Massachusetts; James Arnold Lowell, Judge.

In the matter of Hunt, Ellis & Co. and others, bankrupts. Walter S. Briggs appeals from a decree affirming an order of the referee, and files petition to revise the same de

cree.

Appeal and petition dismissed.

Mark M. Horblit, of Boston, Mass. (Herbert A. Baker and Horblit & Wasserman, all of Boston, Mass., on the brief), for appellant and petitioner.

Daniel J. Lyne, of Boston, Mass., pro se. Lee M. Friedman, of Boston, Mass. (Friedman, Atherton, King & Turner, of Boston, Mass., on the brief), for other appellees and respondents.

tition to revise, and the appeal should be dismissed.

It appears that on August 10, 1925, an involuntary petition in bankruptcy was filed against William Hunt and L. Guy Dennett, copartners carrying on a stock and brokerage business under the name of Hunt, Ellis & Co.; that on October 12, 1925, the alleged bankrupts filed a petition for composition; that on October 13, 1925, the case, with the petition, requesting a meeting of creditors to consider the offer of composition, was referred to the referee in bankruptcy, "to take such further proceedings therein as are authorized by the act and as in his judgment may be necessary or advisable for the preservation of the estate or business of the alleged bankrupt, including the appointment of receivers and appraisers, if necessary; to hear and determine all matters of fact relating to said meeting and the proposed offer in composition; to call such meetings, give such notices, and make such further orders as may be necessary in the premises while said petition and offer in composition are pending, and to file his report under this order within 40 days hereafter"; that on October 17, 1925, notice of a meeting to consider the composition was duly given; that at said meeting held October 30, 1925, on motion of counsel for the alleged bankrupts, the referee fixed December 30, 1925, as the time on or before which claims in the nature of reclamation or in the nature of impressing funds with a trust must be filed, which order was later reduced to writing, notice of which was mailed to all creditors on November 4, 1925; that said order, after setting out the name of the case and the motion of counsel, the time when and the circumstances under which the oral order was made, reads as follows:

"It is hereby ordered that the time on or

BINGHAM, Circuit Judge. No. 1927 is an appeal from a decree of the federal District Court for Massachusetts affirming an order of a referee in bankruptcy limiting the time for filing reclamation claims in a bankruptcy matter where, before adjudication, composition had been offered and accepted by a majority of the creditors, but as yet not approved by the court.

[1] No. 1937 is a petition to revise in matters of law the same decree from which the appeal was taken in the previous case.

The matter is properly before us on pe

herein file any proceeding in reclamation, in the nature of reclamation or in the nature of impressing with trust securities or funds within the jurisdiction of this court, be and the same hereby is fixed at December 30, 1925, being sixty (60) days from the date. hereof and it is further ordered that all persons in interest failing on or before such date to file any such claim be forever thereafter barred from filing the same herein."

On November 11, 1925, the present petitioner filed a petition to review said order by the District Judge, and on November 23, 1925, the District Judge, having reviewed the order, entered a decree dismissing the peti

tion and affirming the order of the referee. No order of adjudication has been entered, and the petition for composition is still pending before the referee. It further appears that the petitioner had, within the time fixed by said order, filed in said proceeding two or more petitions for reclamation.

[2] The contention on the part of the petitioner is that the court erred in affirming the order of the referee on the ground that the latter had no authority to enter the order before adjudication.

We are unable to see wherein the petitioner, in view of the facts set out in his petition, is in any way aggrieved by the order. The petition does not allege that he has been prevented by the order from filing such reclamation petitions as he deemed necessary, and the answer to the petition discloses that he has "within the time fixed therefor by said order filed two petitions in the nature of reclamation, one on December 1, and the other on December 30, 1925."

We listened with interest to the extended arguments of counsel and have spent much time examining the cases called to our attention as bearing on the question argued, but as no right of the petitioner, so far as the facts disclose, is adversely affected by the order, we do not feel called upon to consider it.

It may be doubtful whether the order properly construed operates further than to preclude the filing of reclamation claims in the bankruptcy proceeding after the date fixed by the order and to bar proceedings against the receiver individually in case he turned over the estate to the bankrupts with knowledge of outstanding reclamation claims which had not been seasonably filed, a composition having been confirmed. It would seem, however, that to this extent it would operate to preclude the filing of claims thereafter and as a bar, and that the District Court had jurisdiction to enter such an order. It will be sufficient to consider the question whether the District Court, after a petition for composition has been filed, either before or after adjudication, has jurisdiction to enter an order barring reclamation claims as against the debtor, not presented within the time limited, when a case presenting the question is before us.

It is one thing to say that adverse claimants to property in the custody of the bankruptcy court may have their rights deter. mined in that court, pending a composition, and quite another to say that a bankrupt debtor may, distribution of the estate being

suspended by a pending composition, compel such adverse claimants to have their rights in the property determined in that court or be thereafter barred.

In No. 1927, Briggs v. Hunt, Ellis & Co., the appeal is dismissed without costs. No. 1937, Walter S. Briggs, Petitioner, the petition is dismissed, with costs to the respondents.

HOROWITZ v. UNITED STATES. (Circuit Court of Appeals. First Circuit. February 2, 1926.)

No. 1896.

1. Criminal law 605 - Denial of continuance to procure witness held not error.

Where motion to suppress evidence was denied before case was opened to jury, held that trial court did not abuse its discretion in denying motion for continuance, after government rested, to procure witness to such matter, especially in absence of offer of proof as to such witness' testimony.

2. Criminal law 6952-Denial of motion to suppress evidence held res judicata in subsequent trial before jury.

District Court's denial of motion to suppress evidence after hearing was res judicata on motion to strike in subsequent trial before jury, in absence of exception or assignment of

error.

3. Intoxicating liquors 236 (6%)-Evidence held to warrant finding that accused unlawfully possessed liquor found in his dwelling.

Evidence held to warrant finding that accused unlawfully possessed liquor found in his dwelling for commercial purposes, and that liquor was recently acquired.

4. Intoxicating liquors 236 (62)—Evidence

held to warrant finding that accused unlawfully possessed liquor found in his garage.

Evidence held to warrant finding that accused unlawfully possessed liquor found in his garage.

5. Criminal law 970(7)—Indictment and information121(1), 202(5)-Objection that indictment was indefinite held cured by verdict, and could not be raised by motion in arrest of judgment; remedy being by asking bill of particulars.

Objection that indictment was indefinite and did not clearly state crime was cured by verdiet, and could not be raised by motion in arrest of judgment; accused's remedy being by asking for bill of particulars under National Prohibition Act, tit. 2, § 32 (Comp. St. Ann. Supp. 1923, § 1013828).

In Error to the District Court of the United States for the District of Rhode Island; Arthur L. Brown, Judge.

Abraham Horowitz was convicted of unlawfully possessing intoxicating liquors, and he brings error. Affirmed.

warrants. One was to search the dwelling house where the defendant lived. The liquors seized under this warrant are those complained of in the first count. There was also a garage on the premises located some 30 feet from the house, and it was in this garage that the liquors complained of in the second count were seized under the other warrant. It thus appears that this assignment of error is limited to a consideration of the competency of the evidence introduced that was procured under the warrant to

search the house.

It does not appear from the record upon what ground the defendant claimed that this evidence was incompetent. If it was that the warrant was improperly issued or executed, he was foreclosed from raising that question before the jury, as it had been previously heard and passed upon by the court on the defendant's petition for a suppression of the evidence, as to which ruling no exception was taken and no assignment of error prosecuted. The competency of the evidence, so far at least as the question depended upon the legality of the warrant and seizure under it, was res judicata. Had the defendant desired to save the question, he should have excepted to the denial of his motion to suppress the evidence and assign it as error. Steele v. United States, No. 2, 267 U. S. 505, 507, 45 S. Ct. 417, 69 L. Ed. 761.

[3] The third and fourth assignments relate to the refusal of the court to direct verdicts of not guilty as to the first and second counts. The only evidence in the case is that presented by the government. It tended to prove that on the 26th day of March, 1924, certain prohibition officers, armed with a search warrant, went to 32 Bogman street in Providence, which was a dwelling house consisting of three tenements, the tenement on the lower floor being occupied by the defendant and his family; that they entered the lower tenement and proceeded to search it; that, at the time they entered, the defendant and his wife were not present; that some men were whitewashing the kitchen; that a Mr. Polofsky, a brother-in-law of the defendant, was there; that off the kitchen was a bedroom where two men were found playing cards, and a bottle of whisky, partly consumed, was found upon a table or dresser; that in the cellar beneath the kitchen was found some 19 or 20 cases of alcohol; that in a pantry off the kitchen were some 10 or 12 packages of liquor, containing 6 bottles to a package, in some of which was champagne and in others whisky, and also some packages with a single bottle; that these packages

were done up in a white wrapping paper; that in the bedroom off the kitchen, where the men were playing cards, a trapdoor was discovered under a trunk leading down into a brick vault in the cellar, the only access to the vault being through the trapdoor; that in the vault was found nearly 700 cases of liquor, the greater portion of which were filled and contained 12 bottles to a case; that there were, however, a number of cases that had been opened and bottles removed; that the liquors consisted of champagne, some Gold Stripe and Old King Cole whisky and gin; that there was a window in the bedroom near

the trapdoor; that directly beneath this window was a celler window leading to the vault; that the cellar window was provided with an iron door which barred access to the vault; that the window sill in the bedroom, which was directly in front of the trapdoor in the floor of the bedroom, was well worn down, and showed signs that something had been slid over it; that the premises were owned by the defendant's wife, and the defendant and his family had lived there some 8 or 9 years; that, the defendant not being at home on the day of the search, a copy of the search warrant and receipt for the goods seized was given to Polofsky, the wife of the defendant declining to receive them; that on the following day Polofsky gave them to the defendant, who received them without protest; that in the same yard, at a distance of about 30 feet from the window opening into the bedroom by the trap door, was a garage having four or five separate compartments; that, while searching the dwelling the officers looked through a window or windows of the garage and discovered cases of liquor in the two nearest compartments; that they thereupon procured the second warrant to search the garage, which they entered and searched, seizing a quantity of liquors comprising champagne, gin, and alcohol, the brands being similar and put up in the same way as the cases of liquor found in the house; that some of these liquors in the garage were found upon a truck; that a copy of this search warrant and a receipt for the liquors seized under it were likewise delivered to Polofsky, and by him delivered to the defendant, at the same time and under the same circumstances as attended the delivery of the previous warrant. There was also abundant evidence that the liquors contained one-half of 1 per cent. or more of alcohol by volume, and that they were fit for beverage purposes.

We think that, on the foregoing evidence, the jury might reasonably find that the liq