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the stock. There is in the record a cable "upon advice of counsel,” believes either that from the liquidator of the bank, in London, no such agreement was made, or, if made, to the attorneys for the claimant, in New was ever assented to by the bank. And this York, which states, “No transfer from junior court, upon this record, cannot find that the [Hannevig, the bankrupt] to senior [the bank ever canceled the subscription made by bankrupt’s father] has been made or noti- the bankrupt, or ever intended to accept the fied." The cablegram may be seen in the bankrupt's father in his place and stead. margin.

The fact is clear that, when the bankrupt It is true that in July, 1918, share cer- asked in 1917 to have his subscription cantificates were made out in the name of Han- celed, his request was flatly refused. All that nevig, Sr., and were recorded as a part of we have in this record to support the claim his holdings. The English liquidator of the that the bankrupt is not liable is that no bank states that this was done in error, and certificates were ever issued to the bankrupt, that subsequently, some doubt arising as to and upon that fact we have already comwhether this stock belonged to Hannevig, mented, and in addition two other facts Sr., or to Hannevig, Jr., notice was given which remain to be considered. to both of the doubt, and the senior Han- It appears that no demand for the paynevig objected, “and upon consideration of ment of this subscription was made on the the facts and advice of counsel" the list was bankrupt during the years 1917, 1918, 1919, amended and the 20,000 were settled in the 1920, and 1921, at least until after the bank name of Hannevig, junior, and that he was became insolvent in that year and an official duly advised that he had the right to apply liquidator was appointed. Then it seems to the court within 21 days if dissatisfied, that the New York Hannevig, bankrupt hereand that he made no objection to what was in, was notified by the English liquidator of done. It is said that under English law, as the bank to pay £1 per share. In reply to Hannevig, Jr., made no objection within the that demand the bankrupt expressed no sur21 days, he is bound. As no proof of the prise, and did not in any way disclaim liaEnglish law was pleaded or proven, we disre- bility. This is what he wrote: gard the statement as to the English law.

"I have to acknowledge receipt of your But it appears that no papers at any time notice calling up £1 per share, and in reply were presented to or filed in the bank, where I beg to state that I am unable to pay by the bank was authorized by Hannevig, anything at the present time for the reaJr., to issue the stock to Hannevig, Sr.

son that all my money is invested in the [9] We do not feel justified upon such a rec

Pusey & Jones Company, of Wilmington, ord in saying that the facts disclosed here. Del., U. S. A. This company has been, since in show that the bankrupt was ever released States Shipping Board to build ships and

I bought it, under contract with the United by the bank from the obligation of his sub- have delivered 34 steamers during 1918, 1919, scription. It is evident that Hannevig, Sr., and 1920, ranging inside 4,200 to 13,000 denies that he entered into any agreement to tons d. w. for which work 'United States assume the obligation of the stock subscrip- Shipping Board are indebted to the Pusey & tion, and also that the English liquidator, Jones Company for approximately $14,000,upon investigation of the transaction and

000. As soon as this will be paid I will be 1 "Christoffer Hannevig stop Application for in position to forward you check in accordtwenty thousand shares in name of Christoffer ance with your request. However, as your Hannevig not specifying senior or junior but interests are now identical with mine, I shall address given 139 Broadway, New York, made by his agent Hans Hannevig stop Share cer

be glad to know if


any suggestions tificates in error made in name of Hannevig to make, by which an early settlement might senior handed to Christoffer Hannevig wheth- be arrived at with the United States Shiper senior or junior not clear on July 4th, 1918, and shares recorded as part of senior's holdings

ping Board.”

This was not the letter of a man who stop When settling list of contributories of which notice given to both senior and junior, considered that he was under no liability. senior objected and upon consideration of facts In it he admits liability, and states that on and advice of counsel list amended and 20,000 the happening of the event named in his shares settled in name of junior who was duly letter he “will be in position to forward you advised and told that he had right to apply to court within twenty-one days if dissatisfied. He check in accordance with your request.” And made up application and list as amended final it is observed that this letter was written under English law which suggest must bind after the temporary certificates for this junior and his trustee stop No transfer from junior to senior of the shares has been made stock had been erroneously delivered to Hanor notified."

nevig, Sr., which happened in July, 1918.

JO F.(20) 947 The confusion between Hannevig, the substitute the father, and accept him in the father, and Hannevig, the son (this bank- place and stead of the son, or that the bank rupt), easily arose from the fact that, while ever knew that the two Hannevigs made each had the same Christian name, neither such an agreement between themselves, and of them distinguished himself from the other assented to it. And it was after this alleged by the use of "Sr.” and “Jr.” The witness agreement between father and son was made, testified:

in 1917, that the son wrote the letter of Oc“Q. And where you refer to Christoffer tober 18, 1921, to the liquidator of the bank Hannevig, without designating Sr. or Jr., (hereinbefore quoted), in which he acknowlyou mean the bankrupt, Christoffer Han- edged receipt of the notice calling upon him nevig, Jr.? A. Yes.

to pay £1 per share and replied, "I am unable “Q. How did the bankrupt usually sign to pay anything at the present time," behimself, did he use the word 'junior or just cause all his money was at the time invested sign "Christoffer Hannevig? A. He just in the Pusey & Jones Company, and that as signed Christoffer Hannevig."

soon as that company collected its claim from [10] Before concluding this opinion we may the United States Shipping Board, amountmention that the statute of limitations in ing to $14,000,000 he would be able to forbar of the claim has not been interposed as ward his check as requested. a defense to the claim. Neither does the [11] In view of the whole record, and of the brief or the argument of counsel contain fact that at the present time the name of the a reference to the statute. We allude to the bankrupt appears on the official records of subject only to say that, as respects sub- the bank as the owner of the 20,000 shares scriptions to stock, the statute does not be- of stock, and that fact is known to him, gin to run from the time the subscription and he has done nothing to have his name is made. It begins to run when a call is removed from the list, we are unable to say, made and is due, and only as to such call

. upon the record as it is presented, that the Glenn v. Marbury, 145 U. S. 499, 12 S. Ct. bankrupt has rebutted and overcome the 914, 36 L. Ed. 790; Hawkins v. Glenn, 131 prima facie case made by the filing of the U. S. 319, 9 S. Ct. 739, 33 L. Ed. 184; proof of claim. Glenn v. Liggett, 135 U. S. 533, 10 S. Ct. The order of the District Judge is af867, 34 L. Ed. 262. Cook on Corporations firmed. (8th Ed.) vol. 1, p. 613, § 195. And it is not shown or claimed that any call was made on the bankrupt which he declined to pay,

LYNCH V. UNITED STATES. except the call made by the official liquida- (Circuit Court of Appeals, Eighth Circuit. tor of £1 per share, alluded to in the bank

November 25, 1925.) rupt's letter of October 13, 1921, and to

No. 6800. which reference has already been made. We have not overlooked the testimony 1. Indictment and information 71-Rule as

to sufficiency of charge in indictment stated. of the bankrupt's secretary that on Hannevig's return to this country from Norway, not only entitled to know from indictment, with

In view of presumed innocence, defendant is in October or November, 1917, he was in- reasonable particularity, facts considered suffistructed by the bankrupt to transfer on his cient to make him guilty, but is entitled to have records the amount of $119,108.13 and charge that judgment rendered will be a complete de

indictment charge essential facts so specifically that amount to Christoffer Hannevig, Sr. fense to second prosecution. “This amount," continued the witness, “rep- 2. Indictment and information 150-Rulo resented the £25,000 that had been paid to

governing consideration of demurrer to indict. Hannevig Bank on the original subscription ment stated. for the stock.” He added : “My instruc- Demurrer to indictment must be considertions from Hannevig were to charge this ed on presumption that defendant does not

know facts on which charge is founded, is unamount to his father, because he had made able to procure and present evidence in defense, an arrangement by which his father would and is deprived of reasonable opportunity to detake over the shares."

fend, unless indictment clearly discloses earThat is all that the witness knew-that marks, circumstances, and facts surrounding Hannevig, Jr., told him that it had beon

3. Indians 38(4)-Allegation as to time of agreed between father and son that the

possession of liquor in Indian country held infather in effect would assume the subscrip- sufficient. tion. But it nowhere appears that the fath- Indictment charging possession of liquor in er did assume it, or that the bank agreed to Indian country “on or about the 7th day of




December, 1922,held insufficient, as not iden- the defendant's motion to set aside, vacate, tifying occasion referred to, since prosecutor

and quash the indictment herein." This could prove commission of offense at any time within three years before filing of indictment.

raises the question as to the action of the

court on the motion, made in seasonable and 4. Indictment and information om 150min de

termining sufficiency of facts alleged to make proper time, to quash the indictment. In available judgment against defendant in de

view of our conclusion as to this, it is unfense of another prosecution for same offense, necessary to discuss the other assignments of indictment and possible judgment alone can be error. We turn therefore to the indictment. considered, evidence being prospective and un

Laying aside the formal parts thereof it known.

charges: “That heretofore, to wit, on In determining, on a motion to quash or on a demurrer, the sufficiency of the facts alleged about the 7th day of December, 1922, at Pawto enable the defendant to avail himself of a huska, in Osage county, in the Western disjudgment against him in defense of another

trict of the state of Oklahoma, and within prosecution for the same offense, the indictment and possible judgment alone can be considered, whose more full, true, and correct name is

the jurisdiction of this court, H. L. Lynch, for the evidence is prospective and unknown. 5. Indians Ow38(4)—Indictment for possessing being, did then and there knowingly, will

to the grand jurors unknown, then and there liquor in Indian country held insufficient.

fully, and feloniously have in his possession Indictment charging that "at Pawhuska, in Osage county, in the Western district of the certain intoxicating liquors, to wit, one (1) state of Oklahoma,” defendant had in his posses- pint of whisky, in and upon Indian country, sion “one (1) pint of whisky, in and upon In- to wit, Osage county, Oklahoma." dian country, to wit, Osage county, Oklahoma,' held insullicient, as not stating exact place of crime? This court has many times stated the

Is this a sufficient statement of the alleged persons present at, and circumstances surrounding, alleged offense.

fact essentials of a valid indictment. In

Miller et al. v. United States, 133 F. 337, In Error to the District Court of the 341, 66 C. C. A. 399, 403, it said: "It must United States for the Western District of set forth the facts which the pleader claims Oklahoma; John H. Cotteral, Judge. constitute the alleged transgression so disH. L. Lynch was convicted of possession

tinctly as to advise the accused of the charge of intoxicating liquor in Indian country, which he has to meet, so fully as to give him and he brings error. 'Reversed and re

a fair opportunity to prepare his defense, manded.

so particularly as to enable him to avail himHorsley & Stith and B. C. Trice, all of cf another prosecution for the same crime,

self of a conviction or acquittal in defense Pawhuska, Okl., for plaintiff in error.

and so clearly that the court, upon an examW. A. Maurer, U. S. Atty., and James

ination of the indictment, may be able to A. Ingraham, Asst. U. S. Atty., both of Ok- determine whether or not, under the law, the lahoma City, Okl.

facts there stated are sufficient to support a Before SANBORN and KENYON, Cir- conviction." Again the same doctrine is cuit Judges, and SCOTT, District Judge. enunciated in Fontana v. United States (C.

C. A.) 262 F. 283; Goldberg v. United WALTER H. SANBORN, Circuit States (C. C. A.) 277 F. 211; Weisman v. Judge. Plaintiff in error was tried and United States (C. C. A.) 1 F.(20) 696; convicted in the District Court of the United Armour Packing Co. v. United States, 153 States for the Western District of Oklahoma F. 1, 17, 82 C. C. A. 135, 14 L. R. A. (N. S.) upon an indictment charging possession of 400. intoxicating liquors in Indian country, to In United States v. Hess, 124 U. S. 483, 8 wit, Pawhuska, Osage county, Oklahoma. A S. Ct. 571, 31 L. Ed. 516, the Supreme Court motion to quash the indictment, for the rea- declared: “The object of the indictment is, son that it failed to state facts sufficient to first, to furnish the accused with such a deconstitute an offense under the laws and scription of the charge against him as will statutes of the United States, and that the enable him to make his defense, and avail act under which the indictment was found himself of his conviction or acquittal for was in conflict with the Eighteenth Amend- protection against a further prosecution for ment of the Constitution of the United the same cause; and, second, to inform the States, was overruled by the court. Nine court of the facts alleged, so that it may deassignments of error are filed, some merely cide whether they are sufficient in law to formal.

support a conviction, if one should be had.” The first assignment of error is as fol- [1] The defendant in a criminal case, in lows: “Because the court erred in overruling view of his presumed innocence, is not only

10 F.(2d) 947 entitled to know from the statements of the the indictment, which constituted the time indictment what facts the prosecution con

before the statute of limitations ran. Winsiders sufficient to make him guilty of the ters v. United States, 201 F. 845, 847, 120 offense charged, with reasonable particular. C. C. A. 175; Carpenter v. United States ity, so that he may procure witnesses and (C. C. A.) 1 F.(20) 314. make proper defense thereto, but he is al- [4] Third. In determining the question

. so entitled to demand that the indictment whether or not the indictment set forth the charge the essential facts so specifically that facts which the prosecutor claimed constithe judgment rendered will be a complete de- tuted the offense so particularly as to enable fense to a second prosecution for the same the defendant to avail himself of a convicoffense. United States v. Hess, 124 U. S. tion or acquittal in defense of another prose483, 8 S. Ct. 571, 31 L. Ed. 516; Armour cution for the same offense, the indictment Packing Co. v. United States, 153 F. 1, 82 and the judgment alone can be considered. C. C. A. 135, 14 L. R. A. (N. S.) 400; The evidence cannot be considered because Floren v. United States, 186 F. 961, 108 C. the evidence does not become a part of the C. A. 577. In the light of the decisions re- judgment. Fontana v. United States (C. C. ferred to and the foregoing observations, A.) 262 F. 283, 286; Floren v. United States, does the indictment meet the legal test? Does 186 F. 961, 962, 964, 108 C. C. A. 577; it set forth the facts, which the pleader Winters v. United States, 201 F. 845, 848, claimed constituted the offense in this case, 120 C. C. A. 175. so distinctly as to appraise the defendant of [5] So it was that because under this inthe charge he had to meet, and so completely dictment the prosecutor might prove the posas to give him a fair opportunity to prepare session of the pint of whisky by the defendhis defense, so particularly as to enable him ant at any time within three years prior to to avail himself of a conviction or acquittal the filing of the indictment, that document in defense of another prosecution for the gave the defendant no information when same offense?

within those three years the prosecutor would The consideration and answering of these seek to prove the alleged offense. Pawhuska questions must be made under and in accord- in Osage county, Oklahoma, is not an inconance with these established rules and prin- siderable city; it covers a considerable area, ciples.

has many residences, many places of busi[2] First. Where one is indicted for a seri- ness, many stores, many places where one ous offense, the legal presumption is that he might have the possession of a pint of is not guilty; that he is ignorant of the whisky. The indictment gave the defendsupposed facts upon which the charge is ant no information at what place in that city, founded. A demurrer to the indictment must whether in his residence, in some store, on be considered and determined on that pre- some street, in some restaurant or hotel, or sumption, on the presumption that the de- in some other place in that city, the United fendant does not know the facts that the States would endeavor to prove that the deprosecutor thinks make him guilty, and that fendant had possession of the pint of whishe is unable to procure and present the evi- ky. The defendant could not have had that dence in his defense and is deprived of all possession on any occasion when that occareasonable opportunity to defend unless thesion was not capable of identification, either indictment clearly discloses the earmarks, by surrounding circumstances, persons or the circumstances and facts surrounding the other earmarks, which would have given the case of the alleged offense, so that the de- defendant notice of the occasion on which the fendant can identify, procure witnesses and prosecutor would attempt to prove the ofmake defense to it. Fontana v. United States fense charged. And the latter knew when (C. C. A.) 262 F. 283, 287; Miller v. United the indictment was drawn what that occaStates, 133 F. 337, 341, 66 C. C. A. 399. sion was, the time, place, circumstances sur[3] Second. The time of the alleged offense rounding it, persons present, the identifystated in the indictment in this case, Decem- ing earmarks of that occasion. Nevertheber 7, 1922, gives the defendant no notice less the only information on this subject givor information that enables him to prepare en the defendant by the indictment was that his defense and in no way identifies the occa- he had this whisky in his possession at some sion referred to, because under that aver- time within three years prior to the filing of ment the prosecutor is privileged to prove the indictment at some place in the city of the alleged offense, in this case the defend- Pawhuska. If the United States had set ant's possession of the whisky, at any time forth in this indictment substantial identifywithin the three years prior to the filing of ing facts of the time, place or occasion where


it would attempt to prove the possession of respects shipments in which bills of lading are the whisky, such as that it was on Kihika issued, the "bill of lading" is, as between ship

owner and shipper, the statement of the constreet, near Main street, in Pawhuska, about

tract between them. the middle of the block, in an automobile, in [Ed. Note.-For other definitions, see Words the presence of T. A. Hubbard, George and Phrases, First and Second Series, Bill of Blaine, and Mr. Strong, or any other dis- Lading.) tinctive earmarks of the time, place, or oc- 3. Shipping Om41-Charterers of ship are in casion, the indictment might well have been certain respects owners pro hac vice, and sustained. Such information would have can bind ship in certain matters. enabled the defendant to investigate the

Charterers of ship are in certain respects charge, to learn who were and who were not

owners pro hac vice, and can bind ship in cer.

tain matters. present on the occasion, hence who were possible witnesses, to investigate the entire mat- 4. Shipping Omw 50, 106–Master held entitled to

sign bills of lading and charterers bound “to ter and to prepare his defense to the charge.

indemnify" owners against loss resulting But there was nothing of this kind in this therefrom. indictment. Under it the defendant might Under charter providing that charterers have been called to meet testimony that at should take over ship and indemnify owners any time of day or night within three years of lading, held, that master had right to sign

against consequences of master's signing bills of the filing of the indictment, at any place bills of lading, but charterers were bound to in the city of Pawhuska, he had possession indemnify owners against consequences thereof this pint of whisky.

of; "to indemnify" meaning to make good a

. Were a subsequent prosecution brought loss.

[Ed. Note.-For other definitions, see Words for the same offense a judgment of convic

and Phrases, First and Second Series, Indem. tion or acquittal under this indictment would

nify.] avail the defendant nothing. The identity 5. Shipping Cw106—Bills of lading, dated beof the offenses would be a matter of conjec

fore arrival of vessel, and stamped “On ture. The indictment and judgment in this board," after goods were placed on board, case if offered in a subsequent trial for the without indicating date thereof, held unlaw. same offense would fit many different occa

fully issued (Act Aug. 29, 1916 [Comp. St.

88 8604aaa-8604w]). sions. There would be nothing to show that

Bills of lading, dated before arrival of ship, the alleged offenses were identical. We are

reciting that goods were received for shipment, satisfied the motion to quash the indictment stamped "On board" after goods were actually should have been sustained, and that the on board, without indicating date thereof, held failure so to do was serious and prejudicial yolawfully issued, under Pomerene Act Aug. 29,

1916 (Comp. St. $8 8604aaa-8604w). error. The other questions raised by the assignment of errors need not therefore be 6. Shipping On 106—Master has no power to discussed.

bind shipowners by false bills of lading.

Generally master of ship has no power to The judgment is reversed, and the case re

bind shipowners by false bills of lading. manded for proceedings in harmony with this opinion.

7. Shipping Om 106Statute prohibiting false

bills of lading, enacted to prevent fraud,

should not be construed to work fraud be. 2712!

tween shipper and shipowner (Act Aug. 29,

1916 [Comp. St. 88 8604aaa-8604w]). 1150, 46 Dup G. 634.

Pomerene Act Aug. 29, 1916 (Comp. St. THE CAPITAINE FAURE. COOPER & $8 8604aaa-8604w), prohibiting issuance of bills

COOPER, Inc., v. CAMERON et al. HAR- of lading containing false statement as to reRISONS & CROSFIELD, Limited, v. SAME. ceipt of goods, enacted to prevent fraud, should (Circuit Court of Appeals, Second Circuit.

not be given construction which would work February 1, 1926.)

fraud between shipper and shipowner.

8. Shipping C106 — Bills of lading, falsely No. 141.

showing goods are aboard ship, held binding on 1. Shipping 105Shipowner liable only for

ship, where goods are afterwards received on goods delivered.

board and not transported to destination. Though shipowner may become liable for Bills of lading, falsely showing that goods goods before they are placed on shipboard, to are aboard ship, are binding on ship, where make him responsible it is necessary that goods goods are afterwards received on board and be delivered to him or to his authorized agent. not transported to destination. 2. Shipping Om 106-Dock receipt not the con- 9. Shipping Om 106-Master is owner's agent

tract governing right of shipper against ship- to sign bills of lading, and such contracts, en. owner, where "bill of lading" given.

tered into in good faith, bind ship. Dock receipt is not contract of affreight- Master's contracts relative to usual emment, nor necessarily a delivery to ship, and, as ployment of ship bind owners, and master is

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