CHATFIELD, District Judge. The indictment, which is made a part of the complaint, sets forth successively counts charging three individuals with (1) conspiracy, in the Southern district of New York, to commit an offense by effecting and aiding in effecting an entry of certain goods, wares, and merchandise dutiable by law, at less than the true weight thereof, at the port of New York; (2) conspiracy to defraud the United States of moneys due as duty upon the importation of certain cheese, to be imported and entered by the two individuals who are named as co-conspirators with the defendant here.

The indictment also contains four counts charging the three men in question with having unlawfully effected and aided in effecting an entry of certain cheese at less than the true weight. Each of these last counts attributes certain steps in the transaction to the other two defendants, and certain steps to the defendant whose removal is now sought, but does not seem to charge joint participation in the acts attributed to each.

The conspiracy_counts do not go into great detail, except in reciting the overt acts. The removal of the defendant Quinn is now sought upon a complaint charging him with having conspired with the other two men, with whom he is indicted, to commit an offense against the United States, by effecting and aiding in effecting an entry of goods, to wit, cheese, at less than the true weight thereof.

It will be seen that, treating the indictment merely as an affidavit, or as a part of the record, it is unnecessary to consider whether all of the counts in the indictment would be sustained on demurrer. The sole question under discussion is whether there was probable cause, shown by the record, that the defendant committed, in the Southern district of New York, the offense for which he has been held by the commissioner in this district for trial in the Southern district.

Taking the allegations of all the different counts of the indictment, together with the evidence before the commissioner here, there seems to be abundant reason for holding that the defendant should be taken to the Southern district of New York, and that any discussion as to the exact form of the particular charges to which he may be called to plead be had there. The decision in the case of Tinsley v. Treat, 205 U. S. 20, 27 Sup. Ct. 430, 51 L. Ed. 689, merely requires this court to determine that probable cause exists, and does not alter the rule, established in the cases of Beavers v. Henkel, 194 U. S. 73, 24 Sup. Ct. 605, 48 L. Ed. 882, and Benson v. Henkel, 198 U. S. 1, 25 Sup. Ct. 569, 49 L. Ed. 919, that hearing upon an application for removal is not equivalent to the argument of a demurrer upon all the counts of the indictment.

The question of probable cause comes up on the application for removal, and, if decided adversely to the defendant, is not reviewable, so far as the correctness of decision is concerned, by habeas corpus. Riggins v. United States, 199 U. S. 547, 26 Sup. Ct. 147, 50 L. Ed. 303. In the particular case at bar the writ of habeas corpus and return thereto disclose no defect of jurisdiction. Nor do the records produced by the writs of habeas corpus or certiorari show that no such crime as is charged could have been committed.

The writs of habeas corpus and of certiorari will be dismissed, and the order of removal granted.

MEMORANDUM DECISIONS.

CARONDELET CANAL & NAVIGATION CO. v. DEMOURELLE. (Circuit Court of Appeals, Fifth Circuit. April 12, 1910.) No. 1,952. Appeal from the District Court of the United States for the Eastern District of Louisiana. Before PARDEE, MCCORMICK, and SHELBY, Circuit Judges.

PER CURIAM. In affirming the judgment of this case, we filed no written opinion, because the points involved were well known to the parties, and we were not called on to make a declaration of law for other than this particular case, which case shows that there was neither request nor opportunity to pay tolls in the canal until the incoming vessel should reach the Old Basin, and rule No. 33, relied upon by the appellants, was in effect an invitation to incoming sailing vessels to come up to the harbor under sail, and there was negligently moored in the canal a crib of logs, which to some extent obstructed navigation, and near by there was a stump, very near to the channel, four feet under water, upon which the Lolita struck and received her damages. The damages allowed in the District Court, though assigned as error, did not appear to be contested on the hearing, and they were substantially proved in the record. The petition for rehearing is denied.

March 29,

FOSTER v. BOULO. (Circuit Court of Appeals, Fifth Circuit. 1910.) No. 2,009. In error to the Circuit Court of the United States for the Southern District of Alabama. Peter J. Hamilton, for plaintiff in error. H. Pillans, for defendant in error. Before PARDEE, MCCORMICK, and SHELBY, Circuit Judges.

PER CURIAM. With all the evidence offered by the plaintiff below admitted, we are of opinion that it is insufficient to establish title to the lot in controversy. Besides, see Boulo v. N. O., M. & T. R. R., 55 Ala. 480-493. But, however this may be, the plaintiff's claim is barred by the statute of limitations of the state of Alabama, as construed by the Supreme Court of that state. See Woodstock Iron Co. v. Fullenwider, 87 Ala. 584, 6 South. 197, 13 Am. St. Rep. 73; Lowery v. Davis (Ala.) 8 South. 79. The judgment of the Circuit Court is affirmed.

HUFF et al. v. BIDWELL et al. (Circuit Court of Appeals, Fifth Circuit. April 12, 1910.) No. 2,048. Appeal from the Circuit Court of the United States for the Southern District of Georgia. For opinion below, see 176 Fed. 174. Du Pont Guerry, J. H. Hall, and T. S. Felder, for appellants. John I. Hall, W. G. Smith, T. E. Ryals, W. J. Grace, James L. Anderson, George S. Jones, N. E. Harris, Chas. H. Hall, Jr., R. L. Anderson, Walter A. Harris, and J. E. Harris, for appellees. Before PARDEE, McCORMICK, and SHELBY, Circuit Judges.

PER CURIAM. The original decree, as affirmed in this court, required all the property of the defendant Huff to be sold to pay off, adjust, and satisfy the many liens thereon, and in the conduct and management of the sale complained of the trial judge had and exercised a sound discretion. As the case is presented by the record, we conclude that the sale in question was properly confirmed. The decree appealed from is affirmed, and, considering the large amount of funds tied up by the appeal, mandate will issue at once.

JAMES GIBBONY & CO. v. ENGBLOM et al. (Circuit Court of Appeals, Fifth Circuit. March 15, 1910.) No. 1,979. Appeal from the District Court of the United States for the Southern District of Alabama. T. M. Stevens

and Joseph H. Lyons, for appellant. John W. McAlpine and H. Pillans, for appellees. Before PARDEE, MCCORMICK, and SHELBY, Circuit Judges. PER CURIAM. In this case it is difficult to see how the Russian ship Sylfid, which, at the instance of and for the benefit of the libelants, was taken possession of by the harbor master and moved from its dock, can be held liable to the libelants for any collision which resulted from or followed such moving; and we agree with the trial judge that there was not sufficient evidence to establish negligence or fault against the pilot. The decree of the District Court (169 Fed. 995) is affirmed.

THOMPSON v. DUNNINGTON. (Circuit Court of Appeals, Fourth Circuit. February 28, 1910.) No. 941. On Petition to Superintend and Revise, in Matter of Law, Proceedings of the District Court of the United States for the Eastern District of Virginia, at Richmond. George Bryan and E. B. Thomason (Thomason & Minor, on the briefs), for petitioner. J. T. Coleman (Coleman, Easley & Coleman, on the briefs), for respondent. Before PRITCHARD, Circuit Judge, and BOYD and DAYTON, District Judges.

PER CURIAM. After careful consideration of this record, we are clearly of the opinion that the alleged errors sought to be revised and corrected present not alone questions of law but of fact, and should, therefore, have been brought here by appeal; but, while we reach this conclusion, we nevertheless realize the case has been properly determined on its merits. Coder, Trustee, v. Arts, 213 U. S. 223, 29 Sup. Ct. 436, 53 L. Ed. 772; Steiner v. Marshall, 140 Fed. 710, 72 C. C. A. 103; Kenova L. & T. Co. v. Graham, 135 Fed. 717, 68 C. C. A. 355. Petition dismissed.

WRIGHT et al. v. BLACK. (Circuit Court of Appeals, Fourth Circuit. February 21, 1910.) No. 909. In Error to the Circuit Court of the United States for the Northern District of West Virginia, at Wheeling. J. P. Handlan and Henry M. Russell, for plaintiffs in error. William Erkskine, Benjamin S. Allison, and Edward Kibler, for defendant in error. Before PRITCHARD, Circuit Judge, and BRAWLEY and CONNOR, District Judges.

PER CURIAM. This was an action in assumpsit to recover compensation for personal services. It involved questions of fact that seem to us to have been fairly submitted to the jury, and a careful examination of the record and of the printed arguments submitted fails to satisfy us that any reversible errors were committed on the trial. The judgment of the court below is therefore affirmed.

ZELL et al. v. NORFOLK & S. RY. CO. et al. (Circuit Court of Appeals. Fourth Circuit. March 11, 1910.) No. 964. Appeal from the Circuit Court of the United States for the Eastern District of Virginia, at Norfolk. Thomas Leaming, R. T. Thorp, and Tazwell Taylor (John G. Johnson, on the brief), for appellants. T. L. Chadbourne, Jr., and Edward R. Baird, Jr. (Frederick Hoff, on the brief), for appellees. Before GOFF and PRITCHARD, Circuit Judges, and BOYD, District Judge.

PER CURIAM. We find no equity in the claim of appellants, which is made against the purchasers of the property described in the proceedings of this cause, and we conclude that the court below did not err when it refused to allow said appellants, under the circumstances disclosed by this record, to file their intervention in the foreclosure suit then being disposed of by it. Affirmed.

GORHAM MFG. CO. v. WEINTRAUB et al. (Circuit Court, S. D. New York. March 5, 1910.) On motion to amend complaint. Denied in part. See 176 Fed. 927. Hugo Mock, for complainant. Benno Loewy, for defend'ants.

LACOMBE, Circuit Judge. The complaint as it now stands avers, among other things, that defendants have affixed to the silver plated ware sold by them a mark substantially the same as that employed by complainant. This seems broad enough to admit proof of infringing marks which are not Chinese copies. Motion to amend is denied, except as to the averments of citizenship.

END OF CASES IN VOL. 176.

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