10 F.(2d) 359 for the continuance of this case until the next term of the court. [2] It is also insisted that the court erred in permitting the United States District Attorney to read the affidavit of Emmett Franklin in the presence of the jury. It is claimed in brief of counsel for the government, and not denied by counsel for plaintiff in error, that this affidavit was attached to the search warrant issued in case No. 3344 and a part of the record in that case upon which the government relied in this case to prove a second offense. This record, of course, was competent evidence, and, if the government introduced a part of it, the defendant could have insisted upon the introduction of all of it had he so desired. It also further appears that this affidavit was introduced upon the cross-examination of the defendant in connection with his testimony that he was of good reputation, especially with police enforcement officers; that he knew none that would give him a bad reputation; and that he did not think that Police Officer Emmett Franklin gave evidence against him in the former case in which this affidavit was filed, but against Mr. Holt only. To refresh his memory in this respect the affidavit made by Emmett Franklin in the former case was presented, and he was asked to read the same, but could not do so, because he had no spectacles with him. Thereupon the district attorney asked him: "May I read it to you?" and he answered: "Yes." The district attorney then proceeded to read the affidavit, but was interrupted by counsel for the defendant who objected upon the ground that it was immaterial, irrelevant, and incompetent. This objection was overruled by the court, for the reason that the witness had invited the district attorney to read it. To this ruling the defendant excepted. tions presented by this record, it does not appear that any error intervened to the prejudice of the plaintiff in error. Judgment affirmed. RAY v. UNITED STATES. (Circuit Court of Appeals, Sixth Circuit. January 8, 1926.) No. 4477. 1. Searches and seizures 3-Search of defendant's home for narcotics not invalid, because warrant stated that National Prohibition Act had been violated. Search of defendant's home for narcotics held not invalid, because warrant stated that National Prohibition Act (Comp. St. Ann. Supp. 1923, § 101384 et seq.) had been violated, in view of other statements therein, showing that Harrison Narcotic Act (Comp. St. Ann. Supp. 1923, §§ 6287g, 62871), had been violated. 2. Searches and seizures 3-Affidavit for warrant to search defendant's home for narcotics not invalid, because not negativing all provisions of statute authorizing sale of narcotics. Affidavit for warrant to search defendant's home for narcotics held not invalid, because it thorizing sale of narcotics, where facts stated failed to negative all provisions of statute au in affidavit as to sales made by defendant constituted probable cause for believing that Harrison Narcotic Act (Comp. St. Ann. Supp. 1923, §§ 6287g, 62871), was violated. 3. Poisons 9-Conviction for sale of narcotics sustained. of narcotics in violation of Harrison Narcotic Evidence held to sustain conviction for sale Act (Comp. St. Ann. Supp. 1923, §§ 6287g, 62871). 4. Criminal law 404(4)-Articles discovered on search of defendant's premises in prosecution for violation of Harrison Narcotie Act held admissible. In prosecution for violation of Harrison Narcotic Act (Comp. St. Ann. Supp. 1923, §§ 6287g, 62871), articles discovered on search of defendant's premises, which witness said were delivered to defendant by him in exchange for drugs, held admissible. 5. Indictment and information 110(3), 125 (19) Indictment in language of Harrison Narcotic Act sufficient, and not bad for duplicity. [3] The witness Franklin was called by the government, and testified orally in this case. The defendant therefore was confronted by this witness, and had ample opportunity to cross-examine him in reference to the statement contained in his affidavit, the same as if the record of the case, of which it was a part, had all been introduced in evidence. For these reasons we think the admission of this affidavit in evidence whether it was or was not a part of the record in the former case was not of such prejudicial character as to require the reversal of this judgment. Section 269, Judicial Code (Comp. St. § In Error to the District Court of the 1246). United States, for the Middle District of Upon full consideration of all the ques- Tennessee; John J. Gore, Judge. Count, in language of statute, in indictment for violation of Harrison Narcotic Act (Comp. St. Ann. Supp. 1923, §§ 6287g, 62871), for dealing in narcotics without registering and paying for and taking out a dealer's license, held sufficient, and not bad for duplicity. Charley Ray was convicted of selling narcotics, and dealing in them without having registered and paid license fee of a dealer, and he brings error. Affirmed. competent to charge plaintiff with doing all the things that the licensed dealer usually did. This was done in the language of the statute, which was proper. Stubbs v. U. S., 1 F. (2d) W. P. Smith, of Nashville, Tenn., for 837. plaintiff in error. A. V. McLane, U. S. Atty., and Howard B. Shofner, Asst. U. S. Atty., both of Nashville, Tenn. Before DONAHUE, MACK, and MOORMAN, Circuit Judges. PER CURIAM. Plaintiff in error was convicted on two counts of an indictment, one of which charged him with selling narcotics, and the other with dealing in them without having registered and paid the license fee of a dealer. Among the errors assigned is the admission of incompetent evidence, obtained as claimed under an invalid search warrant. [1, 2] The fact that the warrant stated inadvertently that the "National Prohibition Act" (Comp. St. Ann. Supp. 1923, § 101384 et seq.) had been violated did not render it defective, in view of other statements therein showing that the acts committed were in violation of the Harrison Narcotic Act (Comp. St. Ann. Supp. 1923, §§ 6287g, 62871). Nor was the affidavit on which the warrant was issued deficient. It was not necessary that the affidavit negative all provisions of the statute authorizing the sale of narcotics, in order to show probable cause for issuing the warrant. The facts stated in the affidavit as to the number of sales made, and the place and character of packages from which they were made, constituted probable cause for believing defendant was violating the law and justified the issuance of the warrant. Hence such evidence as was obtained under the warrant, if otherwise pertinent, was admissible against defendant. [3, 4] The judgment of conviction as to the sale is sustained by the evidence. Woods testified to the purchases, and there were rightly introduced in evidence the articles discovered on the search of the premises, which, as the witness said, were delivered to defendant by him in exchange for drugs. The drugs that were purchased were offered in evidence, and in our opinion were sufficiently identified to permit of their admission. There was in these circumstances ample evidence of a sale in violation of the law. [5] Count 3 of the indictment was not bad for duplicity. It charged defendant, not with a specific sale of morphine, but with dealing in narcotics without registering and paying for and taking out a dealer's license. It was Judgment affirmed. FRANKEL v. WOODROUGH, District Judge. (Circuit Court of Appeals, Eighth Circuit. January 9, 1926.) STONE, Circuit Judge. This is a mandamus proceeding against Hon. Joseph W. Woodrough, one of the judges for the district of Nebraska, seeking to compel the trial by him of the petitioner who is under indictment in that district. The petitioner is now serving a sentence in the Leavenworth Penitentiary under conviction for another offense. The petitioner has heretofore presented his petition for the writ and asked leave to file the same. His right to such leave was determined in his favor by this court (7 F.[2d] 796) and a rule to show cause issued. Judge Woodrough has filed a response and the matter is now presented upon the petition for the writ and the response. The previous opinion stated the general conditions requiring the issuance of the writ and then said: "Whether the duty of the trial court is of the character above quoted may be determined upon the return to a rule to show 10 F.(2d) 361 cause why the writ should not issue or, from the face of the tendered pleadings, on an application for leave to file the petition for the writ." That opinion then examined the pleadings tendered (the petition for the writ) to ascertain whether it stated grounds which entitled it to be filed and the rule for cause to issue. We determined such grounds were stated. The question now is whether such grounds have been established. The response is unchallenged in its essential averments. It shows that Judge Woodrough has been, at every term, ready and willing to try accused but unable to do so as accused is prevented from being present because he is imprisoned in another jurisdiction under a valid sentence. Respondent properly alleges that he has no power nor duty to remove the petitioner from the penitentiary, located without his district, to Nebraska for trial. He stands ready to try petitioner whenever he comes or can be brought before him. If the government were urging trial and petitioner resisting or indifferent it would be the duty of the government, through its prosecuting officers, to take the steps neces sary to procure the attendance of petitioner at the trial. If petitioner is urging the trial, it is his duty, as well as right, to take such steps as will procure his attendance. His desire for trial entails no obligation upon the prosecuting officers to secure his attendance. We think the response has fully overcome the petition and that no right, as alleged in the petition, has been established. The result is that the writ should be and is denied. ADKINS-POLK & CO. v. G. AMSINCK & CO. (Circuit Court of Appeals, Fifth Circuit. December 30, 1925. Rehearing Denied January 29, 1926.) No. 4620. I. Appeal and error 730(2)-Noncompliance with rule held to justify refusal to consider assignments of error to general charge. Noncompliance with Circuit Court of Ap peals rule 11, requiring portions of general charge complained of to be set out in assignment of error totidem verbis justifies refusal to consider such assignments. 2. Trial 260 (1)-Refusal of requested special charges, covered by general charge, is not error. Refusal of requested special charges, covered by general charge, is not error. 3. Appeal and error 977 (5)-New trial Refusal of new trial is within discretion of trial judge, and error cannot be assigned thereon. In Error to the District Court of the United States for the Northern District of Action by G. Amsinck & Co. against Adkins-Polk & Co. Judgment for plaintiff, and defendant brings error. Affirmed. Webster Atwell, of Dallas, Tex., for plaintiff in error. Geo. T. Burgess, of Dallas, Tex. (Joseph D. Redding and Joseph A. Spray, both of San Francisco, Cal., on the brief), for defendant in error. Before WALKER, BRYAN, and FOSTER, Circuit Judges. FOSTER, Circuit Judge. This was a suit at law, brought in the District Court by defendant in error to recover damages for a partial breach of a contract for the sale and delivery of 500 short tons of white granulated sugar, alleged to have been caused by the refusal of plaintiff in error to receive and pay for some 57 tons of said sugar. The parties will be referred to as they appeared in the District Court. Defendant admitted the original contract, but pleaded a modification and settlement in full in accordance therewith. The case went to the jury, and resulted in a verdict for plaintiff in the sum of $7,980, on which judgment was entered. The only errors assigned are to the refusal of three special charges requested by defendant and to parts of the general charge of the court, embraced in two assignments, and to the refusal of a new trial. The record is unsatisfactory. The bill of exceptions does not follow the logical order of the trial, and it is difficult to find therein a basis for the contentions of defendant. Furthermore, the entire evidence is brought up, comprising nearly 100 pages of the printed transcript, a wholly useless and unnecessary pro[1] In assigning error to portions of the ceeding, in view of the errors assigned." general charge, defendant has not complied with rule 11 of this court, which requires the portion of the charge complained of to be set out in the assignment of error totidem verbis. It appears from the bill of exceptions that defendant excepted to five distinct portions of the charge. We are unable to determine from the assignments of error which of these excerpts is relied on. In fact, it would appear that none of them is, and that error is alleged either to the whole charge or several portions which do not seem to have been excepted to. This illustrates the wisdom of the rule, requiring that the portion of the charge excepted to be set out totidem verbis. We have repeatedly called this rule to the attention of the bar, and in this case we feel justified in disregarding the assignments of error to the general charge. [2] With regard to the special charges refused, it is sufficient to say the charge of the court, which appears in the record, fully covered the law and the facts of the case, and left the issues fairly to the jury. The special charges requested, in so far as they are applicable to the case, were covered by the general charge. [3] It is elemental that the refusal of a new trial is within the sound discretion of the trial judge, and error cannot be assigned to his action thereon. No error appearing on the record, the judgment appealed from is affirmed. ANCHOR CO. v. P. & M. CO. (Circuit Court of Appeals, Seventh Circuit. November 20, 1925. Rehearing Denied January 13, 1926.) No. 3549. Patents 328-1,228,171, claims 10, 12, and 41, and 1,243, 688, for anticreeper devices, not infringed. Belknap patent, No. 1,228,171, claims 10, 12, and 41, and Belknap patent, 1,243,688, claims 3 and 15, for anticreeper devices for rails and ties, held not infringed. Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois. Patent infringement suit by the Anchor Company against the P. & M. Company. Decree for defendant, and plaintiff appeals. Affirmed. Edwin B. H. Tower, Jr., of Milwaukee, Wis., for appellant. Otto Barnett, of Chicago, Ill., for appellee. Before ALSCHULER, PAGE, and ANDERSON, Circuit Judges. ANDERSON, Circuit Judge. This is a suit for the infringement of claims 10, 12, and 41 of patent No. 1,228,171, and claims 3 and 15 of patent No. 1,243,688, both issued to R. A. Belknap. Appellee's device is made under the patent to Henggi, No. 1,167,299. The court below, in holding that appellant had failed on the issue of infringement, said: "The Belknap device is a rigid, unyielding casting which has no initial grip on the rail. When the device is slid to position and abuts a tie, its downwardly and forwardly projecting foot, when pressed against the tie, operates as a lever arm to rock the whole device on the rail, whereby the rigid bearing against the bottom of the rail and the rigid jaws on the top of the rail grip the rail with a vertical clamping action at opposite sides of the rail. Defendant's device is essentially and necessarily made of steel of a quality so that, when deflected to such an extent as is essential in applying these devices to the rail, it will have such resiliency that its reaction or tendency to resume its original form will be sufficient to cause it to firmly grip the rail at all times, both when under pressure against the tie and when free from any pressure against the tie. Resilience is the heart of the construction, application, and operation of the Henggi device. This resilience is adequate when the device is used in sufficient numbers to resist the creeping pressure which tends to force the rail through the anticreeper when the anticreeper abuts a tie. The engaging surfaces are made so as to flatly engage the corresponding rail surfaces as accurately as it is commercially possible to do." This statement of the characteristics of the two devices is sustained by the record. Appellee's device differs radically in theory and principle from that of appellant, and does not infringe. Decree affirmed. 10 F.(2d) 363 SULTZBACH CLOTHING CO. v. (District Court, W. D. New York. Oct. 26, 1. United States 125-United States does fore paying the balance the Supreme Court held section 4 unconstitutional and void. Thereafter, on motion of defendant, the government consenting, the indictment was vacated and dismissed, the sentence set aside, and a pending writ of error vacated. This action was thereupon brought under section 24, subd. 20, of the Judicial Code (Comp. St. § 991), a re-enactment of the Tucker Act, to recover the amount paid. The United States now moves to dismiss the complaint for want of jurisdiction, in that the cause of action is one sounding in tort and the United States is not subject to lia2. United States 78, 125-Can be sued only bility. The material provision under which Under Judicial Code, § 24, subd. 20 (Comp. St. § 991), giving jurisdiction of claims against government, United States does not subject itself to liability for damages in actions founded on alleged torts of federal officials. on giving its consent, and not liable for wrongs perpetrated by officers. United States can only be sued on giving its consent; consequently no liability exists for wrongs perpetrated by its officers, even though they are inflicted while discharging their duties. 3. Contracts 4-Law implies contracts, without party bound assenting thereto. Law implies contracts in some cases, without party bound assenting thereto. 4. United States 69-Person paying fine under law subsequently declared void has right to rely on implied promise of United States to repay invalid penalty. Where plaintiff paid fine for violation of law subsequently declared void, it had right to waive any element of tort and rely on implied promise to repay invalid penalty. 5. Courts 426-District Court, sitting as court of claims, has jurisdiction of action to recover invalid penalty from United States. District Court, sitting as a court of claims, under Judicial Code, § 24, subd. 20 (Comp. St. § 991), held to have jurisdiction of action to recover of United States fine paid for violation of section 4 of Lever Act (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 3115% ff), which was subsequently held unconstitutional and void. At Law. Action by the Sultzbach Clothing Company against the United States. On motion to dismiss complaint. Motion de nied. Fleischmann, Block & Altman (Simon Fleischmann and Adrian Block, both of Buffalo, N. Y., of counsel), for plaintiff. Francis E. Kerwin, Asst. U. S. Atty., of Buffalo, N. Y. HAZEL, District Judge. The plaintiff, Sultzbach Clothing Company, pleaded guilty to an indictment charging a violation of section 4 of the Lever Act (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 3115ff), and was sentenced by the court to pay a substantial fine. Subsequently, on issuance of an execution, the United States marshal was paid $6,000 to apply on the penalty, and be the action was brought reads as follows: [1] This provision has been construed to "Congress has wisely reserved to itself the right to give or withhold relief where the claim is founded on the wrongful proceedings of an officer of the government." [2] The United States can only be sued upon giving its consent, and this rule is based on the policy of necessity, and consequently no liability exists for wrongs perpetrated by its officers, even though they are inflicted while discharging their duties. In Basso v. |