year and an applicable usage, to which the notices might reasonably refer, and that for the earlier months of the year both parties conformed to the usage, the jury did not doubt, and we do not doubt, that the question put to them was in accord with the better doctrine of contractual interpretation. Judgment affirmed with costs. MERCHANTS' WAREHOUSE CO. v. REBER. (Circuit Court of Appeals, Third Circuit. January 17, 1921.) No. 2571. Receivers 74-Warehouse company, parting with property after service of order preserving status quo, held guilty of contempt. A warehouse company, with which goods were stored by a railroad company when not called for by the consignee, and which, after claim by the shipper and demand by the consignee's receiver, and service of an order from the District Court appointing the receiver, forbidding disturbance of the status quo, returned the goods to the railroad company under advice of counsel, was guilty of contempt, whether the advice was correct or not, as it had no right to determine for itself the ownership of the goods. Appeal from the District Court of the United States for the Eastern District of Pennsylvania; J. Whitaker Thompson, Judge. Proceeding by J. Howard Reber, as receiver of the National Corporation, and as receiver of the Bartram Hotel Company, against the Merchants' Warehouse Company. From an order adjudging the Warehouse Company in contempt (263 Fed. 250), it appeals. Affirmed. See, also, 265 Fed. 791. M. Hampton Todd, of Philadelphia, Pa., for appellant. Before BUFFINGTON and WOOLLEY, Circuit Judges, and BODINE, District Judge. BUFFINGTON, Circuit Judge. This case concerns the controverted ownership of personal property. A railroad company had transported it, and, on the consignee delaying taking it away, had placed it on storage with a warehousing company. The shipper claimed the goods under an alleged right of stoppage in transit and the receiver in equity of the consignee claimed it as an alleged purchaser. Pending a demand by such receiver and a served order from the District Court, which forbade disturbance of the status in quo, the warehouse company, under advice of counsel, returned the goods to the railroad company, which latter took the goods out of the jurisdiction of the court and returned them to the shipper. Thereupon the court, after hearing, adjudged the warehouse company in contempt and imposed a substantial fine therefor. The warehouse company then brought the matter to this court for review. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (269 F.) We find no reason to differ from or question that court's action. The question before it was not whether the advice under which the warehouse company acted was correct, but whether the warehouse company, in determining for itself the ownership of the goods, and acting on such determination, and permitting them to pass out of the jurisdiction of the court, was guilty of contempt. On this latter question we have no doubts. While the facts and circumstances, motive, and character of counsel in Re Star Spring Bed Co., 203 Fed. 640, 122 C. C. A. 36, are wholly different from those of the present case, yet the principle therein stated by this court, in the case of controverted ownership of property involved in bankruptcy administration, is applicable to and determinative of the present matter. In that case, referring to the holder of the property in controversy, we there said: "When asked why he did not permit the court to decide the controverted question of the ownership of these notes, [he] said, 'I will take the responsibility for judging that.' If answer to such contention, or condemnation of such conduct, were required, it is found in Gompers v. Buck, 221 U. S. 450, ** where the [Supreme Court of the United States] say: 'If a party can make himself a judge of the validity of orders which have been issued, and by his own act of disobedience set them aside, then are the courts impotent, and what the Constitution now fittingly calls "the judicial power of the United States" would be a mere mockery.' "" It will thus be seen that the duty of the warehouse company—a mere custodian-was clear, and when it undertook to decide the controverted question of ownership itself, allow the goods to go out of the court's jurisdiction, and make it impossible for that court to decide such ownership, it placed the process, power, and jurisdiction of the court in such contempt that, in ordering it to pay the moderate fine imposed, the contemned court exercised its punitive power with a sparing hand. The order below is affirmed. MORRIS et al. v. UNITED STATES. (Circuit Court of Appeals, Second Circuit. December 15, 1920.) No. 85. Criminal law 1114 (1)-Question not raised by record not reviewable. A question discussed in the appellate court, but not properly raised upon the record, cannot be considered. In Error to the District Court of the United States for the Southern District of New York. Henry Morris and another were convicted of using the mails in a scheme to defraud, and they bring error. Affirmed. Alexander H. Kaminsky, of New York City (Hyman J. Reit and Gilbert Ray Hawes, both of New York City, of counsel), for plaintiffs in error. Francis G. Caffey, U. S. Atty., of New York City (Ben A. Matthews For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes and Albert C. Rothwell, Asst. U. S. Attys., both of New York City, of counsel), for the United States. Before WARD, ROGERS, and MANTON, Circuit Judges. ROGERS, Circuit Judge. The plaintiffs in error are hereinafter referred to as the defendants. They have been convicted under section 215 of the Criminal Code (Comp. St. § 10385) for using the mails in a scheme to defraud. Each defendant has been sentenced to serve one year and three months in the United States Penitentiary at Atlanta, Ga. The indictment contains two counts. The first count charges that defendants devised a scheme to defraud by obtaining merchandise on credit in the name of the Clairmont Silk & Manufacturing Company, by inducing various corporations and firms to believe that defendants were carrying on a legitimate business under that name and were financially responsible, whereas defendants intended, after procuring the merchandise on credit, to convert the proceeds to their own use and not to pay for the same, but to cheat the persons to be defrauded. It also contains the usual allegation that the defendants, having devised this scheme to defraud, for the purpose of executing it, unlawfully, willfully, and knowingly placed and caused to be placed, on a day specified, in a post office of the United States in the city of New York, to be sent and delivered by the post office establishment of the United States, a certain letter inclosed in a post paid envelope addressed to a certain individual naming him. The second count is identical with the first, except that another communication is alleged. The validity of the indictment was not challenged in the court below, and is not questioned in this court. At the trial some objections were made to the admission of evidence, but no exceptions were taken, and there are no assignments of error as to the admission or exclusion of evidence. No requests to charge were made, and no exceptions were taken to the charge as given. It appears, however, that at the close of the government's case a motion was made to instruct the jury to acquit, on the ground that the government had failed to establish guilt beyond a reasonable doubt. That motion was denied, and an exception was taken. The defense then called the two defendants, who testified at length on their own behalf, but called no other witnesses. At the close of the whole case, the motion was renewed that the jury be instructed to acquit, and it was again denied, and an exception was granted. The denial of the defendants is unsupported and uncorroborated, and the verdict of the jury establishes the fact that their testimony was not believed. It would serve no good purpose to review in detail the testimony. It must suffice to say that we have read the record with care, and that it contains substantial and convincing evidence that these defendants were jointly engaged in a scheme to defraud, and that they used the mail in furtherance of their scheme. In the argument in this court certain questions were discussed, which were not properly raised upon the record, and which we are therefore not at liberty to consider. Judgment affirmed. (269 F.) PRICE v. MCGUINNESS, Warden. (Circuit Court of Appeals, Third Circuit. No. 2635. December 23, 1920.) 1. Habeas corpus ~109-Recommitments under lawful sentence held legal. Where a prisoner had applied for habeas corpus, claiming his sentence to be illegal, and had been, by the court to which he applied, twice committed to different jails for specified terms, which were within the term of the original sentence, and the original sentence was in fact lawful, the subsequent commitments were only recommitments under that sentence, and were lawful. 2. Criminal law 1216 (1) —Prisoner entitled to commutation for time served. in county jail under sentence to penitentiary. The time spent by a prisoner in a county jail under commitments by the District Court, to which he had applied for habeas corpus, charging his sentence to the penitentiary to be illegal, entitles him to such commutation of time as he would have earned by serving unbroken his full term in the penitentiary. Appeal from the District Court of the United States for the District of New Jersey; Charles F. Lynch, Judge. Habeas corpus by Richard F. Price against Richard McGuinness, as Warden. Petition for writ denied, and petitioner appeals. Appeal dismissed. Richard F. Price, of New York City, in pro. per. David V. Cahill, Asst. U. S. Atty., of New York City, for appellee. Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges. PER CURIAM. On a plea of "guilty" Price was sentenced by the District Court of the United States for the Southern District of New York to a term of 2 years and 6 months, to be served in the United States Penitentiary at Atlanta, Ga. Representing that the sentence was imposed during his absence, and therefore invalid, Price, after commitment, succeeded by writ of habeas corpus, granted by the District Court of the United States for the Northern District of Georgia, in being returned to and having his case reviewed by the District Court of the United States for the Southern District of New York. The latter court, on September 13, 1920, imposed what Price calls "another sentence" for an additional term of 4 months to be served at Atlanta, and later, on September 22, 1920, without setting aside the prior sentence of the same month, it imposed still "another sentence" of 4 months, to be served in the Essex county jail at Newark, N. J. In this situation Price petitioned the District Court of the United States for the District of New Jersey for writ of habeas corpus, on the ground that the sentence of April 30, 1919, was illegal, because imposed when he was not present in court, or, if legal, then the later sentence for 4 months, which he is now serving, was illegal. From the denial of his petition for a writ of habeas corpus the plaintiff took this appeal. [1] We have given consideration to every aspect of this case, and For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 269 F.-62 are satisfied that the sentence for 2 years and 6 months was legal, and that the subsequent acts of the court involving the appellant's imprisonment, and termed by him "additional sentences," were nothing more than recommitments under that sentence, and that in consequence Price is lawfully in prison. [2] It follows, however, that, notwithstanding his commitment to Essex county jail for a part of his term, Price is entitled to such commutation of time as he would have earned under the law in serving unbroken his full term of 2 years and 6 months. The appeal is dismissed. THE SAN DIEGO. THE PEERLESS. (Circuit Court of Appeals, Fourth Circuit. November 4, 1920.) No. 1836. Salvage ~51-Award of $6,000 for extinguishing fire on dredge sustained. Where all the witnesses were examined in open court, and the issue was purely one of fact, on which the testimony was sharply conflicting, an award of $6,000 as salvage to a tug for extinguishing a fire on a dredge, which was amply sustained by libelant's proof, will be affirmed. Appeal from the District Court of the United States for the Eastern District of Virginia, at Norfolk; Edmund Waddill, Jr., Judge. Libel on behalf of the steam tug Peerless, Joseph M. Clark and others, as owners, and on behalf of the master and crew thereof, against the dredge San Diego, James T. Fox, claimant, for salvage. From a decree awarding $6,000 as salvage, the claimant of the Dredge appeals. Affirmed. Edward R. Baird, Jr., of Norfolk, Va. (Baird & White, of Norfolk, Va., on the brief), for appellant. John W. Oast, Jr., of Norfolk, Va., for appellee. Before KNAPP and WOODS, Circuit Judges, and SMITH, District Judge. KNAPP, Circuit Judge. This libel was filed on behalf of the tug Peerless against the dredge San Diego to recover for salvage services rendered on the morning of July 3, 1919, when fire broke out on the dredge while she was moored, bow inshore, near the United States Naval Operating Base at Hampton Roads. Four vessels came to her assistance, navy lighter No. 56, the tug Peerless, the steamer Riverside, operated by the government, and navy lighter No. 54, in the order named. The libelants claim that the fire was put out and the dredge saved from destruction mainly by the efforts of the tug, which was equipped with powerful fire-fighting apparatus, and they sue for $15,000. The respondent says that the services of the tug were of comparatively For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |