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5. Criminal law Om 242(7)-On government's ing an application to the court for a warrant making prima facie case for removal of accus.

of removal. ed from district, burden shifts to defendant.

Subsequently the defendants surrendered On government's making prima facie case for removal by proof of indictment charging themselves to the United States marshal at crime and defendant's identity, burden shifts, Philadelphia and then obtained a writ of and, unless defendant overcomes burden by habeas corpus and were admitted to bail positive evidence, order of removal will be al- pending a hearing. After a hearing on the lowed.

writ of habeas corpus before Judge Thomp6. Criminal law Om 242(8)-Defendant, in re.

son, of the Eastern district of Pennsylvania, moval proceedings, must be afforded oppor- petition for the writ of habeas corpus was tunity to show want of probable cause.

Tribunal before which removal proceedings dismissed, and the relators remanded to the are pending must afford defendant opportunity custody of the marshal pending the issuance to show that grand jury finding indictment did of a warrant of removal to the District Court not have reasonable or probable cause there in Ohio, with leave to the defendants to for.

enter bail for their appearance at that court 7. Criminal law C243—Defendants held for on February 15, 1926. removal, and appealing from order dismissing An appeal from the order dismissing the

petition for habeas corpus, held not entitled petition and remanding the relators was to supersedeas.

taken to the United States Circuit Court of Where defendants, held for removal, at hearing in habeas corpus proceedings introduced Appeals. The appeal was duly allowed by no evidence to overcome prima facie showing Judge Thompson, but after a full hearing of probable cause made by government's proof he refused to allow a supersedeas pending of indictment (identity being admitted), they the appeal, whereupon application was made . were not entitled to supersedeas on appeal from order dismissing petition and remanding to me for the allowance of a supersedeas. them to custody.

The appeal is not before me, but in de

termining the question of a supersedeas the On Petition for Allowance of Supersedeas merits of the appeal must not be lost sight on Appeal from the District Court of the of. If the appeal raises questions of doubt United States for the Eastern District of as to the right of the government to remove Pennsylvania; J. Whitaker Thompson, the defendants, a supersedeas should be alJudge.

lowed, because, if it is denied, and the defend

ants are removed or enter bail for their apHabeas corpus proceeding by the Unit ed States, on the relation of Barney Tas- pearance in the Southern district of Ohio, the sell and Samuel Tassell, against w. Frank issues involved in the appeal are largely

academic. Mathues, United States Marshal, wherein the relators appealed from an order dismiss- [1,2] While I think, as a general proposi

tion, the defendant should be tried by a ing the petition and remanding them to custody. On a petition to a judge of the Cir- jury of the vicinage, the district in which he cuit Court of Appeals for allowance of resides, yet under the law of conspiracy a

defendant supersedeas, which was denied by the Dis

may be tried at any place where trict Judge. Application denied.

the conspiracy took place, or where an overt

act to effect it was done. Without going inJohn W. Crolly, of Philadelphia, Pa., to detail, there is no doubt in my opinion for appellants.

that the District Court in the Southern DisHenry B. Friedman, of Philadelphia, Pa., trict of Ohio had jurisdiction of the crime for appellee.

which the government has attempted to

charge in the indictment. If the indictment DAVIS, Circuit Judge. The defendants, clearly fails to charge a crime, it is bad, Barney Tassell and Samuel Tassell, were in- and a defendant should not be removed to a dicted in the District Court of the United district to answer the crime with which he States for the Southern District of Ohio, has not been charged; but, where only doubtEastern Division, with a number of other de- ful questions of law arise as to the suffifendants, for conspiracy to violate the Na- ciency of the indictment, final determination tional Prohibition Act (Comp. St. Ann. of them should be left to the court in which Supp. 1923, § 1013814 et seq.). They were it was found. Benson v. Henkel, 25 S. Ct. arrested and taken before a United States 569, 198 U. S. 1, 10, 11, 49 L. Ed. 919; commissioner in the Eastern district of Haas v. Henkel, 30 S. Ct. 249, 216 U. S. Pennsylvania under section 1014, R. S. (sec- 462, 54 L. Ed. 569, 17 Ann. Cas. 1112; tion 1674, Comp. St.), and, after hearing, Henry v. Henkel, 35 S. Ct. 54, 235 U. S. the commissioner held them each in bail pend- 219, 59 L. Ed. 203; Ex parte Littleton (D.

cert denied 271001675, 702


11 F.(20) 55 C.) 1 F.(20) 752; Rodman v. Pothier, 44 admit their identity. Therefore I am of the S. Ct. 360, 264 U. S. 399, 68 L. Ed. 759. opinion that the learned District Judge was The indictment in the instant case does not justified in denying a supersedeas, which I raise in my mind sufficient doubts as to its am also constrained to deny. legal sufficiency to justify the denial of the order of removal. [3] A defendant should not be removed from the district in which he resides, which


en GG 488 has jurisdiction over the crime charged, to ELMAN et al. V. MOLLER et al. another district, which also has jurisdiction, . for trial, if it appears that the grand jury (Circuit Court of Appeals, Fourth Circuit. which found the indictment did not have rea

January 14, 1926.) sonable and probable cause for its action.

No. 2372. The question arises here as to what constitutes probable cause.

1. Admiralty On5 District Court properly re[4,5] The general rule of law is that the fused to take jurisdiction of controversy re

lating to detention of foreign seamen by mas. finding of an indictment of itself raises a

ter of foreign ship, occurring in American presumption of probable cause, which alone,

port, where none of them had asked for dis. if the crime is sufficiently charged and the charge or payment of his wages. defendant identified, is sufficient to justify District Court properly refused to take an order of removal, unless the presumption jurisdiction of controversy relating to detenis overcome by evidence on the part of the ship, occurring in American port, where mas

tion of foreign seamen by master of foreign defendant. Upon this prima facie show- ter put in for bunker coal and wished to sail ing, the burden shifts from the plaintiff to within 24 hours, and did not wish to run risk the defendant, and, unless the defendant of any of his crew overstaying their shore overcomes this burden by positive evidence, leave, and none of them had asked master for

a discharge or for payment of his wages in the order of removal will be allowed. Loon- whole or in part. ey V. Romero (C. C. A.) 2 F.(20) 22; United States v. Levy (D. C.) 3 F.(20) 2. False imprisonment em 6–Seamen's deten

tion pending habeas corpus hearing to secure 816; Hawkins v. Borthwick (C. C. A.) 5

release held not false imprisonment. F.(20) 564; Magnus v. Keville (C. C. A.)

That seamen were detained in custody, 6 F.(20) 157; Gayon v. McCarthy, 40 S. pending habeas corpus hearing to secure their Ct. 244, 252 U, S. 171, 64 L. Ed. 513. release from detention from aboard vessel, held [6] The tribunal before which removal pro

not a false imprisonment, where such course ceedings are pending must afford the de- acquiesced in by everybody to keep things in

was suggested by judge, and was apparently fendant an opportunity to show, if he so de- statu quo. sires, that the grand jury did not have reasonable and probable cause for finding the 3. Constitutional law Ow83(2), indictment. If this opportunity is denied Seamen cannot, when their ship is in port, him, he cannot bear the burden which the ex

be held in involuntary servitude. istence of the indictment places upon him.

4. Seamen 24. Therefore it is error to refuse him such an

Seamen, who received their wages, but two opportunity. Hastings v. Murchie, 219 F. days after they demanded them, could not com83, 134 C. C. A. 1.

plain of delay in making payment. [7] In the case at bar the defendants had ample opportunity to produce evidence show. 5. Admiralty On5 District Court erred in re.

fusing to take jurisdiction of controversy reing that the grand jury in the Southern Dis

lating to detention of foreign seaman by mas. trict of Ohio did not have reasonable and ter of foreign ship, occurring in American probable cause. They did not avail them- port, where his discharge had been prom

ised him. selves of that opportunity. They apparently relied upon the alleged weakness of the District Court erred in refusing to take government's case. The defendants said: jurisdiction of controversy relating to deten

tion of foreign seaman by master of foreign "In view of the contention of the appellants ship, occurring in American port, where he had that the government failed to establish cause asked for his discharge some time before, and for removal, no defense was offered.” They master had promised to give it to him when therefore did not overcome the prima facie ship put in at port. showing of probable cause established by the 6. Constitutional law Ow83(2). indictment.

Foreign ship cannot, when in an American There is no question as to the identity port, forcibly compel one of its crew, albeit of the defendants. As I understand it, they an alien, to serve against his will.

*Certiorari denied 46 S. Ct. 488, 70 L. Ed.

7. False imprisonment Om 36–Seaman held en. sat until 7 that evening, and resumed his ses

titled to $100 damages for detention aboard sion at 9:30 on the morning of the 17th. He vessel,

Seaman held entitled to an award of $100 sustained the writs and discharged the petifor detention aboard vessel, where he had tioners. On the 18th, their depositions were asked for his discharge, and had been promised taken in support of their libel, and at 8:30 in it when immigration authorities withdrew their the evening of that day they were paid their objection to his release, and they had done so.

wages, which they accepted without prejudice

to such right, if any, as they had to demand Appeal from the District Court of the

an additional two days for one for improper United States for the Eastern District of Vir- delay in making such payment. By its final ginia, at Norfolk; D. Lawrence Groner, decree, the learned court below declined to Judge.

take jurisdiction of the libel so far as the Libel by Ed Elman and others against ship, her master and owners were concerned, 0. A. Moller, master of the steamship Roxen on the ground that none of the libelants were and others. From a decree dismissing the citizens; that all of them had been duly artilibel (7 F.[22] 739), libelants appeal. Re- cled seamen on board a Swedish vessel; that versed and remanded in part, and affirmed in the matters of which they complained had part.

their origin in their relation to the ship; and Jacob Louis Morewitz, of Newport News, that the Consul of Sweden was ready to hear Va., for appellants.

anything they had to say. He dismissed the John W. Eggleston, of Norfolk, Va., and libel as against Hornlein and Bridgers findAllan D. Jones, of Newport News, Va. ing that the evidence showed that, if they did (Hughes, Vandeventer & Eggleston, of Nor- anything to the injury of the libelants, it was folk, Va., on the brief), for appellees.

done on land, and therefore outside the ju

risdiction of the admiralty. Before WADDILL, ROSE, and PARK

When or before the ship put in to NewER, Circuit Judges.

port News, her master learned or supposed

that he learned that, if he confined himself to ROSE, Circuit Judge. [1] The libelants taking on bunker coal and made no changes were all alien members of the crew of the in his crew, he would not have to enter or Swedish steamship Roxen, although one of clear, and would escape certain not inconsidthem, Elman, had declared his intention to erable fees and dues. If any of the alien become a citizen. At various ports on the members of the crew went on shore and rePacific Coast of this country or in Australia mained there without the consent of the imthey had shipped for a voyage, the last part migration authorities, the ship would almost of which was to be from the South Seas to certainly be detained in port longer than Europe. On the afternoon of September 15, would otherwise be necessary, and might be 1924, the ship put into Newport News to get subject to a heavy penalty as well. More bunker coal and for no other purpose. She over, as he wished to sail early the next day, tied up at the coal pier at about 5 p. m., was he did not want to run the risk of any of his promptly served, and by 11 was again out in crew overstaying their shore leave. For these the stream. Her master expected to sail the reasons he decided not to grant any, and he next morning, but when, on that day, the employed the Newport News Ship & Cargo 16th, he went ashore about 10 o'clock in the Watching Company to see that none of his forenoon, writs of habeas corpus were served men went on shore without special leave. on him commanding him to produce on the Some of the libelants did not ask for permis17th, the four libelants before a state court sion to go ashore; only one of them seems to judge. Later in the day the libel in this case have attempted to do so, and he was stopped was filed. By it the libelants sought to re- on the wharf by one of the watchmen acting cover for false imprisonment from the ship for the Ship & Cargo Watching Company. in rem and from her master, owners and the None of the libelants, Elman excepted, had respondents Hornlein and Bridgers trading asked the master for his discharge or for the as the Newport News Ship & Cargo Watch- payment of his wages in whole or in part. ing Company in personam, and also from the With the same exception, none of them had ship, her master and owners the balance of expected to leave the ship at Newport News, wages due them and for two days for one but on the contrary had intended to go with during which payment was wrongfully de- her to Europe. Under such circumstances, layed. At the instance of the ship, the hear- we think that, as to the three libelants other ing of the petitions in habeas corpus was be- than Elman, the learned District Judge was gun on the afternoon of the 16th. The judge right in declining jurisdiction. So far as

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11 F.(2d) 55 they are concerned, the case has been argued and of the testimony of several other witnessbefore us as if they had demanded their dis- es was directed to showing that the master charge, which they themselves swear they had did not intend to let Elman go, and, except not done at any time before the hearing of for the habeas corpus proceedings, would not their petition for habeas corpus, or upon the have done so. This contention is denied, and assumption that our laws give a right of there is no means of doing more than guessshore leave to alien seamen serving on for- ing as to what would have happened had no eign ships and intending to continue in such legal proceedings been begun. We think, service. We have not been favored with a however, that the court below erred in declinreference to any statute which so provides. ing jurisdiction in his case. Even a foreign [2] When their petitions for habeas corpus ship cannot, when in an American port, forciwere heard, they did say that they wanted to bly compel one of its crew, albeit an alien, leave the ship and the state court judge, rec- to serve against his will. If he alleges that ognizing their right to do so, discharged such attempt has been made, we believe that them from the custody of the master. It is an American court is bound to hear his comsaid, however, that, as there was an adjourn- plaint and give him such redress, if any, as ment over night of the habeas corpus hearing, he may show he should have. and as they were detained in custody, there To what measure of relief was, he enwas then a false imprisonment, if there had titled? On the evening of the 15th, the not been before. It appears, however, that master could scarcely have done otherwise the fact was that such course was at least sug- than to wait upon the immigration authorigested by the learned judge of the state court, ties. On the morning of the 16th, Elman and was apparently acquiesced in at the time himself started litigation in the state and by everybody as a common sense way of federal courts. The master may well have keeping things in statu quo until the judge thought it was his duty to produce Elman beand those concerned had found out just what fore the state judge in obedience to the manthe situation was and what were the rights date of the writ. When, however, this had of the respective parties to the controversy. been done, the master should have at once [3, 4] The final judgment of the state court told the court that he made no claim further court properly held that when their ship was to detain the petitioner. There was no reason in port, they could not, in our day and gen- why the latter should have been required to eration, be held in involuntary servitude, but go into any hearing. He had asked for his that was necessarily all that it could decide. discharge, and had been promised it so soon It did not attempt to say that they might not as the immigration authorities had withdrawn be pecuniarily liable for a breach of a valid their objection to his release. They had done contract, precisely as men in all other walks so. The further attempt to hold him was unof life are, and it said nothing as to whether justified. He was not, it is true, humiliated any wages were due them, and, if so, how or seriously injured or oppressed, but he much. It was not until the 16th that any of may well have been put to some extra exthem in any way asked for their discharge. pense, and one who unlawfully restrains the On the 18th they received their wages in full, liberty of another must answer for it. without any deduction on account of their [7] We think under all the circumstances, an apparently civilly unjustified breach of their award of $100 in Elman's favor against the contract. They certainly cannot complain ship, master, and owners will be just. that there was any improper delay in making The courts should act promptly and vigpayment.

orously to vindicate all the rights of seamen, [5,6] Elman's case differs from the others, in as well those recently conferred on them, as that while the ship was at Panama, he had those which date from time immemorial. We asked for his discharge. The master had doubt not that even now they will often need promised to give it to him when the ship put all the protection that can be given them. in at Newport News. Almost immediately On the other hand, it will be well that those upon her arrival there, she was boarded by who act for them shall not take them unnecesan immigration officer. He was asked wheth- sarily into court or on their behalf set up er Elman could be discharged. He said that claims destitute of other than the most purehe could not say until the next day, the 16th. ly technical support. On the latter date, he told the captain that It follows from what has been said that there was no objection to his paying Elman the decree below dismissing the libel, so far off. Before that time, however, the petition as concerns the libelants other than Elman, for habeas corpus had been filed. A good should be affirmed. That, as to him, it should deal of the cross-examination of the master be reversed, and he should be awarded a decree of $100 against the ship, master, and gleston, of Richmond, Va., on the brief), for owner and that so much of the decree below defendant in error. as dismissed the libel against Hornlein and

Before WADDILL, ROSE, and PARKBridgers, trading as the Newport News Ship ER, Circuit Judges. & Cargo Watching Company should be affirmed.

ROSE, Circuit Judge. The United PaReversed in part; affirmed in part. perboard Company sued the Southern Gyp

sum Company for $35,806.98, with interest, being the contract price at $115 per ton of

311.365 tons of chipboard sold and delivered SOUTHERN GYPSUM CO. V. UNITED

f. o. b. cars plaintiff's mill. The parties were PAPERBOARD CO.

corporations of New Jersey and of Virginia,

respectively. We will call them the seller and (Circuit Court of Appeals, Fourth Circuit. January 12, 1926.)

the buyer. The defense was that the goods

furnished were not of the quality bargained No. 2382.

for, and on that ground the buyer said it had 1. Sales en 121, 176(5)-Buyer, using substan. rejected them altogether, or, in the alternatial part of shipment, held to have waived tive, that it was entitled to deduct from the right to rescind, but not to abatement in price it had promised to pay the damage price.

caused by the failure of the board to come Buyer of chipboard, which, while repeatedly rejecting a shipment in its correspondence with up to specifications. The goods were shipseller, at same time used substantial part there- ped in August, 1920, and reached the buyer of, held to have waived its right to rescind, at various dates in that month and in early though not right to abatement in price. September. For the purpose of the ques2. Sales no 188-Buyer entitled to abatement tions upon

which we are called upon to pass, in price on account of inferior quality equal to it may be assumed that the buyer proved that difference in value to it of quality contracted the chipboard was not of the prescribed qualfor and that delivered.

Measure of abatement in purchase price, to ity, and that its defects made it substantially which buyer of chipboard was entitled on ac

less valuable to the buyer than it otherwise count of inferior quality, held the difference in would have been, and that in due season on value to it of the chipboard contracted for and September 11, 1920, the buyer in writing rethat shipped, where market was falling and jected the chipboard and asked the seller to value to it the same as market value.

take it away, and repeated the rejection and 3. Sales En 188—Buyer entitled to abatement the request in a number of other communica

in price on account of inferior quality held entitled to credit for freight paid, but not

tions at subsequent dates. If this were all on account of storage.

that there was in the case, it is obvious that Buyer, entitled because of defects to an the buyer was entitled to the instructed verabatement in price equal to difference between dict for which it asked; but, unfortunately value to it at its mills of board contracted for for it, the uncontradicted evidence shows that and that delivered held entitled to a credit for amount of freight paid, though not on account

what it did is not reconcilable with what it of storage.

wrote, for during the months of September,

October, November, and December it conIn Error to the District Court of the tinued to use the chipboard, and actually conUnited States for the Western District of sumed 46 tons of it in making and in attemptVirginia, at Roanoke; Henry Clay McDow- ing to make its standard plaster board, alell, Judge.

though as late as the succeeding January it

wrote the seller that the entire shipment was Action by the United Paperboard Com

still untouched. pany against the Southern Gypsum Compa- [1,2] Clearly, as the learned judge below ny. Judgment for plaintiff, and defendant held, the buyer had waived its right to rebrings error. Affirmed, on condition that scind, though not, of course, to an abatement plaintiff remit a stated sum; otherwise, re

from the contract price. The buyer comversed and remanded for new trial.

plains of the rule laid down for the guidHoward C. Gilmer, of Pulaski, Va., and ance of the jury in calculating how much J. P. Buchanan, of Marion, Va. (Buchanan that abatement should be. They were told & Buchanan, of Marion, Va., on the brief), to deduct from the contract price such sums for plaintiff in error.

as fairly represented the difference in value Aubrey R. Bowles, Jr., and John S. Eg- to the buyer for its own use between the chipgleston, both of Richmond, Va. (James Todd, board shipped and the chipboard contracted of Chicago, Ill., and McGuire, Riely & Eg- for. Under all the circumstances of the in

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