10 F.(2d) 648 "Any counsel employed by the President under the authority of this resolution shall be appointed by and with the advice and consent of the Senate, and shall have full power and authority to carry on said proceedings, any law to the contrary notwithstanding." H. J. Res. 160, Pub. Res. 8, 68th Congress, 43 Stat. 16. Between the dates respectively of these two enactments, Atlee Pomerene and Owen J. Roberts, attorneys at law, were duly appointed by the President, by and with the advice and consent of the Senate, to serve as special counsel for the United States in the prosecution of said litigation. They accepted the appointment, and acted as such special counsel at the times hereinafter referred to. Subsequently, said Atlee Pomerene and Owen J. Roberts, together with Oliver E. Pagan, an attorney at law, were "specially retained" by the Attorney General of the United States, to serve as special assistants to the Attorney General, under the authority of the Department of Justice, to assist in the trial of the cases growing out of the proceedings above referred to, and were specifically directed to conduct, in the District of Columbia and in any other judicial district where the jurisdiction thereof lies, any kind of legal proceedings, civil or criminal, including grand jury proceedings, which district attorneys were authorized by law to conduct. It was stipulated by the Attorney General that Atlee Pomerene and Owen J. Roberts should receive no compensation under this appointment, other than that which should be paid them as special counsel aforesaid, and that Oliver E. Pagan should receive no compensation, except such as should be paid him as special assistant to the Attorney General in anti-trust matters under an appointment in effect since August 1, 1919. Thereupon said Atlee Pomerene, Owen J. Roberts, and Oliver E. Pagan, together with Peyton Gordon, United States attorney for the District of Columbia, appeared for the government before a grand jury of the District of Columbia, and took part in its proceedings with reference to said charges. The grand jury then returned the indictment in question, charging Albert B. Fall with receiving a bribe while acting as Secretary of the Interior with reference to said leases and contract. The defendant filed a plea in abatement, claiming, inter alia, that the presence of Peyton Gordon as district attorney and Oliver E. Pagan as special assistant to the Attor ney General with the grand jury, while the charge in question was under consideration, was unauthorized and vitiated the indictment. The defendant contended that, by the force and effect of the following provisions of the Acts of February 8 and 27, 1924, to wit, that the special counsel "shall have charge and control of the prosecution of such litigation, anything in the statutes touching the powers of the Attorney General of the Department of Justice to the contrary notwithstanding," and "shall have full power and authority to carry on said proceedings, any law to the contrary notwithstanding," the prior general statutes relating to the authority of the Attorney General and other law officers of the government to act as counsel for the United States, were pro tanto superseded in respect to litigation of this character, and that there was vested in the special counsel appointed under the acts the sole duty and power to represent the government in all such litigation, including grand jury proceedings, to the exclusion, not only of the Attorney General, but of all other law officers of the government. He claimed accordingly that the participation of the district attorney and the special assistant to the Attorney General in the grand jury proceedings was unauthorized by law, and vitiated the indictment. The lower court held that Peyton Gor don, as district attorney, was entitled by law to take part in the proceedings of the grand jury, but that the presence of Oliver E. Pagan as special assistant to the Attorney General at the proceedings was unauthorized. Upon that ground the court sustained the plea in abatement, and quashed the indictment. This appeal followed. [1] It is conceded that the presence of an unauthorized person with the grand jury during the consideration of a charge would invalidate any indictment thereupon found, but in this case it is our opinion that not only the special counsel, but also the district attorney and the special assistant to the Attorney General, if acting under the direction, charge, and control of the special counsel, were authorized to take part in the grand jury proceedings. We need not discuss the right of the special counsel, as such, to take part in the proceedings of the grand jury, since that is conceded by the appellee and furnishes the basis of his contention. Their subsequent appointment as special assistants to the Attorney General for the purpose of these proceedings did not detract from the authority already possessed by them. It cannot be disputed that the general statutes which were in force at the date of the special acts invested the United States attorney for the various districts, including the District of Columbia, with authority to appear before grand juries and conduct criminal prosecutions within their respective districts, and also to prosecute within their districts all civil actions in which the United States are concerned. Rev. St. § 771 (Comp. St. § 1296); Code D. C. §§ 183, 932. At the same time it was provided that any attorney specially appointed by the Attorney General under any provision of law, when thereunto specifically directed by the Attorney General, was entitled to conduct any kind of legal proceedings, civil or criminal, including grand jury proceedings, which district attorneys were authorized by law to conduct. Act June 30, 1906 (34 Stat. 816 [Comp. St. § 534]). It is clear that under these statutes the district attorney and the special assistant to the Attorney General were fully authorized to take part in the grand jury proceedings now in question, unless denied that right by the special provisions of the Acts of February 8 and 27, 1924. Those acts authorized the prosecution on behalf of the United States of certain classes of litigation, including both civil and criminal proceedings, and provided for the appointment of special counsel, who should have charge and control of the prosecution thereof, anything in the statutes touching the powers of the Attorney General of the Department of Justice to the contrary notwithstanding, or any law to the contrary notwithstanding. These special provisions must prevail over the prior general statutes, in so far as a repugnancy exists between them. We think, however, that the repugnancy extends no farther than is necessary to deprive the Attorney General and other law officers of the government of the charge and control over this class of litigation, such as might exist under the general statutes, and vest that authority in the special counsel. Ordinarily the Attorney General would have charge and control for the government over the prosecution of such litigation. Under general statutes he is entitled to conduct in person any case in any court in which the United States are interested, or he may direct the Solicitor General to do so. Rev. St. § 359 (Comp. St. § 533). He is given general superintendence and direction over the district attorneys as to the discharge of their respective duties. Rev. St. § 362 (Comp. St. § 537). He is authorized to employ and retain, in the name of the United States, such attorneys at law as he shall think necessary to assist the district attorneys in the discharge of their duties. Rev. St. § 363 (Comp. St. § 538). He may in person conduct any kind of legal proceedings, civil or criminal, including grand jury proceedings, which district attorneys are authorized by law to conduct. Aet June 30, 1906 (34 Stat. 816 [Comp. St. § 534]). The provisions of the special acts expressly deprive the Attorney General of control over litigation of this character, and vest the same in the special counsel. They contain no express reference, however, to the district attorneys or other authorized law officers of the United States, nor do they by implication make it unlawful for these officers to continue in the performance of their usual statutory duties, subject, however, to the charge and control of the special counsel, instead of the Attorney General, in this class of cases. Such precedure would not amount to an interference by the Attorney General or other officers with the power and control with which the special counsel were invested. If Congress had intended to prohibit and exclude all district attorneys, wherever located, and all other authorized law officers of the government, from appearing or taking any part whatever in either the civil litigation or criminal proceedings contemplated by the acts, even if acting under the charge and control of the special counsel, it is reasonable to believe that apt terms would have been employed to express such intent. The acts do not express that intent, nor do they expressly repeal any prior statute or part thereof. In view of the rule that repeals by implication are not favored, the effect of the special provision should not be enlarged by labored construction. Wood V. United States, 16 Pet. 342, 10 L. Ed. 987; Henderson's Tobacco, 11 Wall. (78 U. S.) 652, 657, 20 L. Ed. 235; Wilmot v. Mudge, 103 U. S. 217, 26 L. Ed. 536; Frost v. Wenie, 157 U. S. 46, 15 S. Ct. 532, 39 L. Ed. 614. Full force and effect is given to the provision when the special counsel are assured of the charge and control over this class of litigation, without interference by the Attorney General or any other authority. The special acts, moreover, were designed to promote the effective prosecution of the proposed litigation, and it was known to Congress that the assistance of district attorneys within their various districts, and of the other authorized law officers of the 10 F.(2d) 651 government, might be of great service to the special counsel in discharging the duties imposed upon them. It is contended that the congressional proceedings and comments, contemporaneous with the enactment of the acts, tend strongly to sustain the construction claimed by the appellee. We do not think, however, that these sources of information are sufficiently certain respecting the present issue to overcome the natural interpretation of the acts. [2] It is not denied by the plea in abatement that the district attorney and the special assistant to the Attorney General appeared before the grand jury in this case under the direction, charge, and control of the special counsel. In the proper construction of the plea, the absence of such a denial justifies an inference of the fact. Hillman v. United States, 192 F. 264, 112 C. C. A. 522; United States v. Silverthorne (D. C.) 265 F. 859. Accordingly we hold that the record fails to disclose the presence of any unauthorized person at the grand jury proceedings. The judgment of the lower court is reversed, and the cause is remanded for further proceedings not inconsistent herewith. UNITED STATES v. DOHENY et al. (Court of Appeals of District of Columbia. Submitted November 3, 1925. Decided December 7, 1925. Motion for Rehearing or Modification of Opinion and Judgment Denied December 19, 1925.) No. 4363. The indictment charges the appellees, Edward L. Doheny and Edward L. Doheny, Jr., with giving a bribe to Albert B. Fall, while acting as Secretary of the Interior, to influence his official action respecting certain oil leases and contracts then pending before him. The defendant filed various pleas in abatement, which were followed by a special traverse and demurrer. The lower court sustained the plea, and quashed the indictment. The government appealed. The case presents the same issues as those involved in the appeal of United States v. Albert B. Fall (Suit 4362) App. D. C. 10F.(2d) 648. The two cases accordingly were argued and submitted to the court together. For the reasons which are set out in our opinion this day handed down in the former case, we reverse the judgment of the lower court in this case, and remand the cause for further proceedings not inconsistent therewith. SMITH et al. v. LAW et al. (Court of Appeals of District of Columbia. Submitted November 4, 1925. Decided December 7, 1925.) No. 4234. Judgment 693-Judgment in partition action held res judicata in subsequent suit to quiet title. Where husband's interest in realty, conveyed to him and his wife as joint tenants, was sold under writ of fieri facias to one who obtained a partition sale of the property in suit against wife, held, in subsequent action by husband and wife against purchaser at partition Appeal from the Supreme Court of the sale and others to quiet title, decree in partiDistrict of Columbia. tion suit was res judicata of question whether plaintiffs had been seized with an estate by the subject to execution or partition. O. J. Roberts, of Philadelphia, Pa., and entireties, such that the estate of neither was Atlee Pomerene, of Cleveland, Ohio, for the United States. Appeal from the Supreme Court of the F. J. Hogan, of Washington, D. C., for District of Columbia. appellees. Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices. MARTIN, Chief Justice. This is an appeal from a judgment of the lower court, sustaining a plea in abatement and quashing an indictment, upon the ground that certain persons unauthorized by law were present at the grand jury proceedings when the charge was considered and the indictment found. Suit by Ruth R. Smith and another against Henry T. Law and others. Decree for defendants, and plaintiffs appeal. Affirmed. J. L. Tepper, of Washington, D. C., for appellants. G. C. Gertman, of Washington, D. C., fo appellees. Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices. title against each and all of said parties. The defendants filed a motion to dismiss the bill upon the claim, in part, that the issue sought to be raised therein was manifestly res judicata. The motion was sustained, the bill was dismissed, and the present appeal was taken. We think the lower court was right. It appeared that the appellants were defendants in the partition case brought in the Supreme Court of the District by the purchaser, Henry T. Law, who claimed in the bill filed by him therein to be a tenant in common with said Ruth R. Smith in the premises, and who demanded partition thereof, and that partition was decreed accordingly and a sale of the premises made thereunder. The court possessed full jurisdiction to hear and determine the issue thus presented, and the defendants in the case then had their day in court to present whatever defenses they might have against the cause set out by the plaintiff in his bill. It is plain that the plaintiff's claim to title was chief among these, and the decree in favor of the plaintiff upon that issue is conclusive upon all matters directly involved therein, or such as could have been then adjudicated, and that the decree is not open to collateral attack by the parties. District of Columbia v. Brewer, 32 App. D. C. 388; Nalle v. Oyster, 36 App. D. C. 36, aff'd 230 U. S. 165, 33 S. Ct. 1043, 57 L. Ed. 1439; Carmody v. Simpson-Sullivan Co., 44 App. D. C. 39; Great Bear Spring Co., v. Bear Lithia Springs Co., 47 App. D. C. 434; Southern Pacific Railroad Co. v. United States, 168 U. S. 1, 18 S. Ct. 18, 42 L. Ed. 355. MARTIN, Chief Justice. The appellants prayed accordingly for a decree quieting their are husband and wife, and were plaintiffs below. They sought a decree in the lower court against the present appellees as defendants, to quiet title to certain real estate situate within the District of Columbia. In their bill of complaint they alleged that in January, 1922, they purchased the property in question, each contributing a part of the purchase price, and that a conveyance thereof was duly made to them "in fee simple, as joint tenants." They claimed that under this conveyance they held the property as tenants by the entirety, and accordingly that the estate of neither was subject to sale upon execution nor to partition. They alleged that nevertheless in February, 1923, the United States marshal of the District of Columbia, acting under the supposed authority of a writ of fieri facias issued under seal of the Supreme Court of the District, based upon a judgment rendered by that court against said Claude R. Smith alone, undertook to and did sell his undivided interest in said lands; that appellee Henry T. Law was the purchaser at said sale, and received a deed of conveyance from the marshal purporting to convey to him the undivided interest of Claude R. Smith in said realty, to all of which proceedings the plaintiffs then and there duly objected. They alleged, further, that in March, 1923, the purchaser, Henry T. Law, "acting on the erroneous supposition that he was a tenant in common" with said Ruth R. Smith in the realty, under the attempted sale and conveyance thereof to him, filed his bill in equity in the Supreme Court of the District against them for a partition of the property, "and in due course of time obtained a decree of this court for partition of said real estate," under which decree a sale thereof was made to the appellee Thomas, A. Jameson Company, and a deed of conveyance was delivered to it. The plaintiffs contended that these proceedings were all absolutely void, and conveyed no title adverse to them, since they had held their title to said realty as tenants by the entirety, as aforesaid, and the same was not subject to partition. They The contention of the appellants properly amounts to no more than that the former decree upon the present issue was erroneous. Their remedy in that event was an appeal,. which was not taken. They cannot now in a collateral case treat the former decree as absolutely null and void, while it still stands of record unappealed and unreversed. The decree of the lower court is affirmed, with costs. In United States v. Boyd, 5 How. 29, 12 L. Ed. 36, the court had under consideration a case where a demurrer to a rejoinder had been sustained by the court below, and the party, on leave, had filed an amended rejoinder. The court held that it was not called upon to rule upon the demurrer, since the right to have that question determined was waived by filing the amended rejoinder. I. Q. H. Alward and H. E. Davis, both The court said: "If the defendants had inof Washington, D. C., for appellant. This VAN ORSDEL, Associate Justice. is an action in replevin, brought by appellant, plaintiff below, to recover certain jewelry and bonds held by defendant Jeffords, as executor, and deposited with the Lincoln National Bank. But one of the defendants, Jeffords, executor, is brought here by this appeal. To plaintiff's declaration, defendant interposed the pleas of not guilty and the statute of limitations. Plaintiff joined issue on defendant's pleas, but subsequently withdrew her joinder, and to the second plea filed a replication. Defendant demurred to the replication, and the demurrer was sustained. Plaintiff amended her replication, and again a demurrer thereto was sustained. Plaintiff then pleaded over, by joining issue on the plea of the statute of limitations, and trial was had on the merits. No bill of exceptions appears in the record. The only error assigned is in sustaining the demurrer to plaintiff's replication. The appeal can be disposed of on a single question of practice, namely, can defendant now avail herself of the ruling of the court below in sustaining the demurrer to the replication? When the demurrer to the amended replication was sustained, two courses were open to plaintiff: One, she could have elected to stand upon her replication and suffer judgment to go against her tended to have a review of that judgment on a writ of error, they should have refused to amend the pleadings, and have permitted the judgment on the demurrer to stand." This rule was followed in Clearwater v. Meredith, 1 Wall. 25, 17 L. Ed. 604, where the court had under consideration a question identical to the one before us. The court have the decision of the court below on the said: "But the plaintiff claims the right to sufficiency of his previous replications reviewed here. This he cannot do. Each replication in this cause is complete in itself, does not refer to and is not a part of what precedes it, and is new pleading. When the plaintiff replied de novo, after a demurrer was sustained to his original replication, he waived any right he might have had to question the correctness of the decision of the court on the demurrer. In like manner he abandoned his second replication, when he availed himself of the leave of the Court, and filed a third and last one." In Nalle v. Oyster, 230 U. S. 165, 33 S. Ct. 1043, 57 L. Ed. 1439, where the court had under review the application of section 1533 of the District Code, Mr. Justice Pitney, speaking for the court, said: "Section 1533 of the District Code provides that in all cases where a demurrer to a declaration or other pleading shall be overruled, the party demurring shall have the right to plead over, without waiving his demurrer. This is obviously designed to modify the former rule that where, after demurrer overruled, leave was given to plead, and the demurring party pleaded to the pleading demurred to, he waived the demurrer, and took it out of the record so that it did not appear in the judg |