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At the beginning of the trial counsel for all defendants and for the government joined in asking the court to exclude from the trial all witnesses except the one under examination. This application was granted. As the testimony of the government was presented, reference was made from time to time to one Fox. As the defense proceeded the defendant Rosenberg called in his own behalf said Fox, to be sworn as a witness. Fox, however, had been brought to the trial as a witness for one of the other defendants. Whereupon one of the jurors called attention to Fox having been present in the courtroom while testimony was being received and in violation of the direction of the court. The defendant Sonand, who had not subpoenaed the witness, objected to the testimony, and it was excluded.

No authority has been brought to the attention of the court bearing directly upon the proposition whether the right of one defendant to have a direction of the court (concededly within its power) enforced may be disregarded, in order that another attorney may take the testimony of a witness who has disregarded the court's direction. Holder v. United States, 150 U. S. 91, 14 Sup. Ct. 10, 37 L. Ed. 1010, involved only one defendant. Furthermore, in that case the witness was permitted to testify without objection, and upon being recalled objection was interposed and overruled; the court holding that the weight of authority is that a witness cannot be excluded merely on the ground that he has remained in the courtroom, although the right to exclude under particular circumstances, which are within the discretion of the trial court, may be supported. Other authorities cited by the defendant have to do with striking out pleadings, a proposition which is not here involved. The Holder Case, supra, seems to do no more than to decide that a witness is not disqualified, if in the discretion of the court his testimony should be received, and that the admission thereof is not reversible error. That case cites Wilson v. State, 52 Ala. 299, in which it is stated that it is in the discretion of the court to permit or refuse the examination of a witness who violates the order of exclusion, and the exercise of the discretion is not reviewable. citing 1 Greenl. Ev. § 432.

In the case at bar, where a codefendant asserted that he would be prejudiced by admission of the testimony of the witness, a clear case is presented for the exercise of this discretion. The "particular circumstances," referred to in the Holder Case, are present. The defendant Sonand, not expecting to call Fox, was under no duty to see that he remained without the courtroom. If Rosenberg desired to call him, it was his duty to see that the order was obeyed.

The court is of the opinion that the case at bar is to be distinguished from the Holder Case, supra, in that the witness Fox did not testify at all, and because of the fact that the rights of a codefendant are involved. It was the duty of defendant Rosenberg to make it his business to see that no man to whom reference was made, and whose testimony therefore might be important, should remain in the courtroom during the trial. He failed to take the necessary precautions to see that Fox followed the direction of the court after having been put on guard.

(269 F.)

Therefore now he cannot be heard to object, when a codefendant is prejudiced by his conduct.

Furthermore, it is clear that the testimony in question, if not actually immaterial, would not have been sufficient to justify disturbing the verdict of the jury.

Motion of the defendant Rosenberg to set aside the verdict as to him, and for a new trial, is denied.

In re ORONA MFG. CO.

(District Court, D. Massachusetts.

No. 26533.

January 4, 1921.)

Bankruptcy 361-Trustee cannot raise objection that unclaimed dividends escheated to state.

A trustee in bankruptcy cannot oppose an order directing him to pay unclaimed dividends into court for distribution among the other creditors, if still unclaimed and if sufficient for such purpose, as is required by Bankruptcy Act, § 66a (Comp. St. § 9650), on the ground that that section is unconstitutional, because money paid into court and remaining unclaimed is required by the Revised Statutes to be paid to the United States, instead of escheating to the state, as it should, since the provision of the Bankruptcy Act is merely a reasonable method of disposing of unclaimed dividends to permit the final settlement of estate, and if the commonwealth desires to claim such funds it should do so in its own name.

In Bankruptcy. In the matter of the Orona Manufacturing Company, bankrupt. Petition by the trustee for review of an order by the referee directing him to pay into court dividends unclaimed by creditors. Order affirmed.

William M. Prest, of Boston, Mass., for trustee in bankruptcy.

MORTON, District Judge. Checks for two dividends, amounting, respectively, to $96.54 and $97.12, were mailed by the trustee to the last known addresses of the creditors. The checks were returned by the post office with the statement that the addressees could not be located. The trustee, not being able to discover their whereabouts, retained the checks. After waiting more than six months, he petitioned for instructions, and was ordered by the referee to pay the money into court, under Bankruptcy Act, § 66a (Comp. St. § 9650). From this order the present review was taken.

The section in question provides that dividends which remain unclaimed for six months after the final dividend has been declared shall be paid by the trustee into court, and that dividends which have remained unclaimed for one year shall, under the direction of the court, be distributed to the creditors whose claims have been allowed, but not paid in full. There are further provisions which are immaterial for the present case.

The trustee admits that the case comes within the statute; but he contends that the statute is unconstitutional, because moneys deposited

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

in court which remain unclaimed for a certain period are, under the provisions of the Revised Statutes, paid over to the United States. According to his contention, such funds belong to the state as property which has escheated.

The dividends in question are not being dealt with in a final way. The referee has merely ordered that they be paid into court, where they can still be claimed by the creditors entitled to them, and, if not claimed, will, according to the usual practice, be eventually divided among other creditors of the estate, unless too small in amount to justify the expense and trouble of so doing. This method of disposing of such funds seems to me reasonable, and to be unobjectionable on constitutional grounds. It serves a very useful purpose in enabling trustees to close out estates completely and finally, and concentrates unclaimed funds in the hands of the court, instead of scattering them among many trustees. The power to direct the disposition of small residues in bankruptcy cases is incident to the general power over bankruptcy conferred upon Congress by the Constitution. If the Commonwealth of Massachusetts desires to claim such funds, it should do so in its own name, and in connection with the proceeding to turn them over to the Treasurer of the United States.

Order of referee affirmed.

(269 F.)

ARNAUD V. LANGELLOTTI.

(Court of Appeals of District of Columbia.

Submitted December 8, 1920.

Decided January 3, 1921.)

No. 3405.

1. Appeal and error 1050 (1) -Testimony that plaintiff, suing for false arrest, was always sane, held not prejudicial, in view of other evidence. In an action for false arrest and imprisonment, where plaintiff had been charged with being insane, and where a witness, who had known plaintiff intimately during the year in which he was arrested for insanity, testified without objection that during that period he was of sound mind, further testimony by the witness that plaintiff was always of sound mind was not prejudicial to defendant.

2. Trial 296 (2)-Objection to instruction "as standing by itself" insufficient, where whole charge was correct.

In an action for false arrest and imprisonment, where the court at plaintiff's request had charged that the jury could infer malice from want of probable cause, an objection to that instruction "as standing by itself," but finding no other fault with it, presents no question for review, where the court on his own motion had charged fully with respect to the same matter, to the satisfaction of defendant.

3. False imprisonment 4-Malice may be inferred from want of cause.

In an action for false arrest and imprisonment, the jury may infer malice from the fact that there was no probable cause for plaintiff's arrest, though want of probable cause does not establish malice.

4. Appeal and error 1033 (3)—Recitals in habeas corpus judgment held favorable to defendant in false imprisonment action.

In an action for false arrest and imprisonment, recitals in a judgment on habeas corpus proceedings, introduced to prove plaintiff's release from arrest, that the warrant on which plaintiff was arrested was void and affidavit of lunacy insufficient, because not accompanied by a physician's certificate, tended to show plaintiff was released because of defects in the proceedings, not for want of probable cause, and were therefore favorable, and not prejudicial, to defendant.

Appeal from the Supreme Court of the District of Columbia. Action by Frank Langellotti against Joseph J. Arnaud for false arrest and imprisonment. Judgment for plaintiff, and defendant appeals. Affirmed.

E. F. Colladay, of Washington, D. C., for appellant.

Charles V. Imlay and George W. Offutt, Jr., both of Washington, D. C., for appellee.

SMYTH, Chief Justice. The appellee brought action against the appellant for false arrest and imprisonment, malicious prosecution, and assault. He recovered judgment, and the defendant appeals.

[1] Plaintiff was arrested August 10, 1917, on complaint of the defendant, in which he was charged with having made threats of personal violence against him and with being insane. A witness, having told of his intimate acquaintance with the plaintiff in the year 1917, testified that during that period he was "of sound mind and he could never have thought of him as of unsound mind." The witness was then permitted, over the objection of the defendant, to say

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

that in his opinion the plaintiff was "always of sound mind." It is claimed that this was prejudicial, because it covered, not only the date on which the plaintiff was arrested, but also a time subsequent thereto. The first answer went in without objection. It covered, not only August 10, but the whole period of 1917. If any harm was done by it, it was done with the implied consent of the defendant, and we are unable to perceive how the second answer could have added anything to it; hence it did not prejudice him.

[2, 3] The court, at the request of the plaintiff, charged the jury that if they found that the defendant had instituted the prosecution against him for threats and for insanity, or either, without probable cause, and that the same terminated in plaintiff's favor, the fact that there was no probable cause was evidence from which the jury might infer malice on the part of the defendant. The latter objected to it "as standing by itself." He found no other fault with it. But it did not stand by itself, for the court, on his own motion, charged fully with respect to the same matter, and counsel for defendant at the close of the entire charge stated that he was satisfied with the charge. The objection, therefore, presents no question for our decision. Even if it did, the result would be the same, for the instruction is correct in point of law. Rosen v. Stein, 54 Hun, 179, 7 N. Y. Supp. 368. It will be noted that the court did not say want of probable cause established malice, but that the jury might infer malice from it, which is quite a different thing.

[4] A writ of habeas corpus was sued out to test the legality of plaintiff's arrest on the charges lodged against him by the defendant, and, after hearing, he was released. To prove the release, the judgment in the proceedings was introduced. This, appellant says, prejudiced him, because of certain recitals therein, which are that the warrant upon which the plaintiff was arrested on the charge of having made threats was void, and that the affidavit of lunacy was insufficient, because not accompanied by the certificates of two physicians. These recitals tended to show that the plaintiff was released, not because there was no probable cause for the charges made against him, but because of defects in the proceedings. They had, therefore, a tendency to aid, rather than to injure, defendant. No prejudice could have resulted to him from them.

We find nothing in Feld v. Loftis, 240 Ill. 105, 88 N. E. 281, relied on by appellant, which conflicts with the view we have just expressed. There being no error in the record, the judgment is affirmed, with

costs.

Affirmed.

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