« SebelumnyaLanjutkan »
not more than five thousand dollars, or imprisoned not more than five years, or both."
This section provides the punishment for knowingly making an affidavit false as to any material fact required to be proven in a naturalization proceeding. It is substantially the same as section 39 of the act of March 3, 1903 (chapter 1012, 32 Stat. 1222), referred to by the Court of Appeals in Schmidt v. U. S., supra. And, as said by Mr. Justice Gilbert in that case, it is to be deemed as an amendment of section 5395 (U. S. Comp. St. 1901, p. 3654), so far as it refers to the punishment for perjury in a naturalization proceeding.
But if section 23 is to be construed as applying to perjury committed on the final hearing only, and not in any of the preliminary stages, the facts stated in the indictment bring the case within the terms of section 5392 of the Revised Statutes, defining the crime of perjury and providing for the punishment thereof. This section is of long standing, is general in its terms, and applies to all cases in which a false oath or false testimony is taken or given in a matter required by law, before any competent tribunal, officer, or person. Babcock v. U. S. (C. C.) 34 Fed. 873. So that it is manifest that there is a statute prescribing the punishment for perjury committed in a naturalization proceeding.
It is not necessary, to determine at this time whether the punishment is to be administered under the provisions of section 23 of the naturalization act or under section 5392 of the Revised Statutes. The only question for decision now is whether the facts stated in the indictment constitute a crime, and upon that question I entertain no doubt.
The demurrer is overruled.
(District Court, D. Oregon. February 14, 1910.) 1. SHIPPING (§ 84*)—LIABILITY OF VESSELS-INJURY TO STEVEDORE.
A ship's duty to oue employed by stevedores, engaged as independent contractors in discharging the vessel, ends when it furnishes him with a safe working place and a safe passage thereto.
[Ed. Note.--For other cases, see Shipping, Cent. Dig. $$ 342, 349-351 :
Dec. Dig. § 84.*] 2. SHIPPING ($ 84*) - LIABILITY OF VESSEL-INJURY TO STEVEDORE.
Libelant was employed by stevedores, who had contracted to remove the ballast from a vessel, to run a hoisting engine used on a scow alongside the vessel. While the work was suspended during a heavy snowstorma, at the request of his employers he went along the deck of the vessel to look after the lines of the scow, and, slipping on a skylight, which was covered with snow, fell and was injured. The passageway across the vessel, over which libelant was required to pass from the pier to the scow, was free of snow. Held, that the vessel was not required to keep the other parts of the deck cleared of snow as fast as it fell for his protection, and was not chargeable with any negligence which rendered it liable for his injury.
[Ed. Note.-For other cases, see Shipping, Cent. Dig. $$ 342, 349–351;
Dec. Dig. $ 81.*] •For other cases see same topic & $ NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexen
In Admiralty. Suit by J. E. Hatton against the French bark Rochambeau. Decree for respondent.
Albert H. Tanner and John Van Zante, for libelant.
BEAN, District Judge. Libel against the French bark Rochambeau to recover damages for a personal injury. On January 5, 1909, the bark was alongside the Oceanic Dock, in the harbor at Portland, for the purpose of removing ballast. McCabe Company, Incorporated, stevedores, were independent contractors employed for that purpose, and had a scow made fast to the bark on the outside thereof, upon which was a hoisting or donkey engine and appliances for handling the bucket or digger used in taking the ballast from the hold. The libelant was employed by McCabe Company as an engineer to operate the hoisting engine. The morning of the accident he reported for work at 6 o'clock to get up steam, preparatory to beginning the regular work of the day. To reach the scow, it was necessary for him to pass from the dock across the deck of the bark. The stevedores came to their work about 7 o'clock in the morning; but a severe snowstorm was then prevailing, and had been during most of the previous night. They worked but a short time, when they were laid off, on account of the storm. The libelant, however, was directed by his employer to remain at the scow, preparatory to resuming work later on in the day if the storm abated, and in the meantime to see that the scow was safely fastened to prevent injury to it from the high wind and storm.
About 9 o'clock in the morning, while passing along the deck of the bark to examine the stern line of the scow, he stepped on one of the skylights, which was covered with snow, and slipped and injured his knee. The skylight was not in the passage between the dock and the scow, and it was not necessary for him to pass over that part of the deck in going to or returning from his place of work. The snow had been removed from the deck of the vessel by the crew about 7 o'clock; but it was then falling, and had been all morning, and was several inches deep at the time of the accident. The claim is that the ship was negligent in not keeping the snow removed from the skylight as fast as it fell, or sprinkling it with sand or ashes, to prevent persons stepping thereon from slipping. The libelant was not a member of the ship's crew, nor employed by it. He was in the service of an independent contractor. The ship’s duty to him ended when it furnished him a safe place to work, and a safe passage thereto. The Saranac (D. C.) 132 Fed. 936.
He was, however, on the vessel by its implied invitation, and it owed to him the same duty as the owner of any other premises would owe to a person thereon by invitation, and that was to use reasonable and ordinary care to keep the premises in a safe and suitable condition, so that he would not be unnecessarily or unreasonably exposed to danger. I do not think, however, that this duty required the ship, under the circumstances and in view of the storm then prevailing, to keep that portion of the deck where the accident occurred free from snow, or to remove the same as fast as it fell, or cover it with sand or ashes. It had no reason to suppose that the libelant was going there to work,
and there was nothing unusual in the construction of the vessel. The skylights were the same as are customarily used by vessels of that kind and trade. The libelant had worked along the water front for some years, and was familiar with the general construction of vessels, and must have known that they were ordinarily provided with deck or skylights, and that when he undertook to walk across the deck, covered as it was with snow, to perform some duty for his employer, he was likely to slip and fall, and necessarily assumed the risk therefrom. The unfortunate accident which resulted in his injury was unavoidable, and not attributable to any negligence or want of duty on the part of the master or crew of the vessel.
The libel is therefore dismissed.
In re SUCKLE.
(District Court, E. D. Arkansas, W. D. February 12, 1910.) BANKRUPTCY ($ 314*)—CLAIMS OF WIFE-EMPLOYMENT BY HUSBAND-WAGES.
Kirby's Dig. Ark. $ 5213, securing to a married woman her real and personal property and the proceeds of her labor, performed on her sole and separate account, free from interference or control of her husband, or from his debts, should be strictly construed, on the ground of public policy, and did not authorize a married woman to recover for services rendered to her husband as clerk in his store, under a contract of employment, against his estate in bankruptcy.
[Ed. Note.--For other cases, see Bankruptcy, Dec. Dig. $ 314.*] In the matter of the bankruptcy of Jacob Suckle. On petition to review the claim of Dora Suckle for wages. Order of referee denying claim affirmed.
The petitioner presented a claim for $680 against the estate of the bankrupt for alleged services as clerk. The claim was disallowed by the referee and on a petition for a review brought before this court. The facts established by the evidence are that she is the wife of the bankrupt; that they have a family of four children of tender age; that when the bankrupt went into business 16 months ago he entered into a contract with her whereby she was to be employed as clerk in the store and receive as compensation $10 per week; that she performed the services as clerk for 68 weeks, until the proceedings in bankruptcy were begun, but that pothing had ever been paid to her for her services; that the household duties were performed by a cook, and the children were taken care of by a nurse; that the bankrupt, her hus. band, paid all the household expenses, including the wages of the servants, and the wearing apparel and other expenses of the claimant.
Wiley & Clayton, for claimant.
TRIEBER, District Judge (after stating the facts as above). It is conceded by counsel for the claimant that at common law a wife could not recover for such services from her husband; but it is claimed that the married woman's act of this state permits such contracts, and therefore entitles her to recover. The statute relied on was enacted on April 28, 1873 (Acts 1873, c. 126), is digested in Kirby's Digest as section 5213, and is as follows:
*For other cases see same topic & S NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes
"The property, both real and personal, which any married woman now owns, or has had conveyed to her by any person in good faith and without prejudice to existing creditors, or which she may have acquired as her sole and separate property; that which comes to her by gift, bequest, descent, grant or conveyance from any person; that which she has acquired by her trade, business, labor or services carried on or performed on her sole or serarate account; that which a married woman in this state holds or owns at , the time of her marriage, and the rents, issues and proceeds of all such property shall, notwithstanding her marriage, be and remain her sole and separate property, and may be used, collected and invested by her, in her own name, and shall not be subject to the interference or control of her husband or liable for his debts, except such debts as may have been contracted for the support of herself or her children by her as his agent."
The act has never been construed by the Supreme Court as to this particular question; but it is the settled rule of that court that the entire act must be strictly construed, upon the ground of public policy. Thus it has been held, since the enactment of this act, that the common-law rule that husband and wife are seised of the entirety in land conveyed to them jointly still prevails. Kline v. Ragland, 47 Ark. 111, 14 S. W.474; Roulston v. Hall, 66 Ark. 305, 50 S. W. 690, 74 Am. St. Rep. 97. Nor can a husband and wife form a mercantile partnership, although a married woman may form such a partnership with any person other than her husband. Gilkerson-Sloss Com. Co. v. Salinger, 56 Ark. 294, 19 S. W. 747, 16 L. R. A. 526, 35 Am. St. Rep. 105. A promissory note of a married woman, not for the benefit of her estate, is void at law as well as in equity. Conner v, Abbott, 35 Ark. 365. She cannot convey lands by power of attorney. Holland v. Moon, 39 Ark. 120; Batte v. McCáa, 44 Ark. 398. Nor make an executory contract to convey lands. Felkner v. Tighe, 39 Ark. 357. Nor is the common-law liability for the wife's antenuptial debts abrogated by this act. Kies v. Young, 64 Ark. 381, 42 S. W. 669, 62 Am. St. Rep. 198. In view of these constructions placed upon the statute by the highest court of the state, it is but reasonable to presume that, should this question come before it, it would declare such a contract void, as against public policy, and not within the meaning of the act.
The act is a literal copy of that of the state of New York, before the amendment of 1890, and that court has uniformly held that such a contract between husband and wife is void as against creditors, and also against public policy. Whitaker v. Whitaker, 52 N. Y. 368, 11 Am. Rep. 711; Coleman v. Burr, 93 N. Y. 17, 45 Am. Rep. 160; In the Matter of Callister, 153 N. Y. 302, 47 N. E. 268, 60 Am. St. Rep. 620. The decisions of other courts are not harmonious on the subject; but it is unnecessary to cite them, in view of the fact that the identical question based upon a similar statute has been determined by the Circuit Court of Appeals for this Circuit, and it was there held that such a contract is void. Brittain v. Crowther, 54 Fed. 205, 4 C. C. A. 341. Judge Caldwell, who delivered the opinion of the court, said:
"While the cases may not be entirely harmonious upon the question of the husband's right under these modern statutes to the earnings of his wife for labor performed by her for third persons, the authorities are uniform that such statutes do not operate to give the wife a legal claim upon her husband or his estate for wages for performing her domestic duties as a wife, or for aiding and assisting him by her labor in any business pursuit he may be en
gaged in, and any promise of the husband to pay his wife for such services is without consideration and void as against the claims of his creditors, and property transferred to the wife by the husband to pay for such services long after they were rendered, and after he has become insolvent or is largely in debt, may be seized and appropriated to the payment of the husband's debts."
In Re Kaufmann (D. C.) 104 Fed. 768, it was held that under the statutes of New York, as amended by the act of 1896, which permits a' married woman to make contracts in respect to her separate estate with any person, including her husband, does not permit a contract for her personal services to the husband. The court there said:
"If so, it would enable her to acquire property by contract with him respecting her domestic services. There is a wide distinction between the power to acquire property by contract with the husband and a power to create prop erty which shall be her own, by an agreement that she shall be paid for services that the law intends that she shall render gratuitously, if at all. In other words, a contract with the husband for the acquisition of property does not include a contract to convert her personal services to her husband into property."
A similar conclusion was reached in Re Trombly, 16 Am. Bankr. Rep. 599, by the United States District Court of Vermont.
The claimant is not entitled to any compensation for her services, leaving out the question of the suspicious circumstances connected with the claim.
PHILADELPHIA EXTRACTING CO. V. KEYSTONE EXTRACTING
CO. et al.
(Circuit Court, E. D. Pennsylvania. February 14, 1910.)
1. INJUNCTION (8 56*)-DISCLOSURE OR USE OF TRADE SECRETS.
Where complainant was the owner of an unpatented secret process for extracting alcohol from empty whisky barrels, and for many years had employed the same, using reasonable precautions to insure secrecy, its servants necessarily intrusted with knowledge of the process being enjoined not to disclose any of its steps, complainant was entitled to restrain an ex. servant, who had learned the process during his service, from communicating the same to others and using such information to organize a competing business on his own account.
[Ed. Note.--For other cases, see Injunction, Cent. Dig. $ 110; Dec. Dig. $ 56.*
Disclosure of trade secrets, see note to S. Jarvis Adams Co. v. Knapp,
58 C. C. A. 8.) 2. INJUNCTION ( 113*)-LACHES.
Laches was no defense to a master's right to an injunction to restrain an ex-servant's future use of a secret process disclosed to the servant in the course of his employment by complainant.
[Ed. Note.-For other cases, see Injunction, Cent. Dig. 88 198, 199; Dec. Dig. § 113.*] In Equity. Suit by the Philadelphia Extracting Company against the Keystone Extracting Company and others. On motion for preliminary injunction. Granted. •For other cases see same topic & $ NUMBER in Doc. & Am. Digs. 1907 to date, & Rep'r Indexon