2 F.(2d) 853 earlier case of Howard v. Moyer (D. C.) 206 F. 555. Moreover, the case of Hyde v. United States, supra, came before the Circuit Court of Appeals for the Eighth Circuit. on writ of error. In Ex parte Poole (D. C.) 273 F. 623, Judge Bourquin in a habeas corpus case held that the modern doctrine sanctioned the imposition of a single general sentence which, while exceeding the maximum which could be lawfully imposed upon a single count, was not greater than the aggregate sentence permitted upon the several counts under which the defendant had been convicted. We are of the same mind. Admittedly, in the instant case, the judge might properly have said: "I sentence you to serve two years in the penitentiary on the first count and two years on the second, the sentence on the second to begin on the expiration of the service of the sentence under the first; and I further sentence you to serve two years on the third count, the serving of the sentence on the third count to begin at the expiration of the service of the sentence on the second count." The practical consequences to the defendants of the sentence actually imposed are precisely the same, and they therefore have no occasion to complain. 2. Receivers 59-Action of state court having jurisdiction in having nonresident's property seized not subject to collateral attack, except for fraud. Where jurisdiction of state court attached, its action in having nonresident debtor's property seized and held by its receiver cannot be collaterally attacked, even if erroneous, except for fraud. 3. Bankruptcy 20 (2)-State court's juris. of nonresident debtor in possession of its re- Order denying bankruptcy trustee's petipointed by state court, to turn over bankrupt's tion for summary order requiring receiver, approperty to him was properly presented for review by petition to superintend and revise. Petition to Superintend and Revise and Appeal from the District Court of the United States for the Southern District of Mississippi; Edwin R. Holmes, Judge. In the matter of the L. D. Murrelle Lumber Company, bankrupt. Petition for summary order requiring D. R. McGehee, receiver, and others, to deliver certain property, was dismissed, and S. M. Neely, trustee in bankruptcy, appeals and petitions for superintendence and revision. Appeal dismissed, and petition to superintend and revise denied. Nevertheless, all things that are lawful are not expedient. We are persuaded that by far the better practice is for the trial court in its sentence expressly to apply the punishment it awards to the separate counts upon which the prisoners have been convicted, and to direct whether their punishment shall be served consecutively or concurrently. If this be done, a much simpler problem will Morgan Stevens, of Jackson, Miss., Holmes J. Morgan Stevens, of Jackson, Miss. (J. be presented to the appellate court, in the & Canale, of Memphis, Tenn., and Wells, event that in the trial below error has been Stevens & Jones, of Jackson, Miss., on the committed as to the issue raised by some, brief), for petitioner and appellant. but not by all, of the counts. Affirmed. NEELY v. McGEHEE et al. In re L. D. MURRELLE LUMBER CO. (Circuit Court of Appeals, Fifth Circuit. December 9, 1924.) No. 4345. 4. Receivers 12-County chancery court of Mississippi may, without judgment at law or nulla bona return, subject nonresident's property to demands of creditors. Independently of statute, county chancery court of Mississippi, under its general equity powers, may, without judgment at law and nulla bona return, subject nonresident's property tn Mississippi to demands of creditors. Luther A. Whittington, of Natchez, Miss., for respondents and appellees. Before WALKER and BRYAN, Circuit Judges, and CLAYTON, District Judge. WALKER, Circuit Judge. By appeal and by petition to superintend and revise the trustee in bankruptcy of a Tennessee corporation, which was adjudged bankrupt under a petition filed on December 15, 1923, complains of an order dismissing a petition, which prayed for a summary order requiring a receiver appointed on May 21, 1923, in a suit brought against such corporation in the chancery court of Franklin county, Miss., to turn over and deliver to such trustee in bankruptcy property in Missis sippi, which went into the possession of such receiver upon his appointment and was in his possession as receiver when the dismissed petition was filed. The bill in the suit in which the receiver was appointed showed that the complainant therein was a creditor of said corporation, and it prayed that a receiver of assets in Mississippi of the nonresident debtor be appointed to hold and conserve those assets until the rights of the creditors have been fully determined and adjudicated, and in the end distribute the same as the court may direct. [1,2] Whether the action of the Mississippi court in appointing the receiver and in having assets of the debtor held for disposition under its orders was or was not erroneous, that action was not void. Independently of statute, by virtue of its general equity powers, that court may, without a judgment at law and nulla bona return, subject to the demands of creditors the effects in Mississippi of a nonresident debtor. Dollman v. Moore, 70 Miss. 267, 12 So. 23, 19 L. R. A. 222. Jurisdiction of the state court having attached, its action in having the debtor's property seized and held by its receiver, when questioned collaterally, unless impeached for fraud, must be regarded as regular in all things and irreversible for error; it being of no avail that the court's action was erroneous, where what it did in taking possession and control of property was within the scope of its power or jurisdiction. Manson v. Duncanson, 166 U. S. 533, 17 S. Ct. 647, 41 L. Ed. 1105; Cornett v. Williams, 20 Wall. 226, 22 L. Ed. 254. [3] The state court's jurisdiction over the property held under its orders by its receiver was not affected by the bankruptcy adjudication under a petition filed more than four months after that court, through its receiver, acquired possession of the property in question. The bankruptcy court was without right to draw to itself the possession and administration of property of the bankrupt of which the state court acquired possession and control as above stated more than four months prior to the filing of the bankruptcy petition. Blair v. Brailey, 221 F. 1, 136 C. C. A. 524; Empire Trust Co. v. Brooks, 232 F. 641, 146 C. C. A. 567. It follows that the court did not err in making the ruling complained of.. [4] We think that that ruling is properly presented for review by the petition to superintend and revise. The appeal is dismissed. The petition to superintend and revise is denied. ANGELO et al. v. LAMBORN et al. (Circuit Court of Appeals, Fourth Circuit. December 20, 1924.) No. 2278. 1. Sales2-Contract of sale to be performed in Georgia is a Georgia contract. Contract of sale to be performed in Georgia is Georgia contract. 2. Sales177-Seller not bound to treat as final buyer's refusal to accept before time for delivery specified. within stated time, is not bound to treat as Seller, having option to make deliveries final any statement by buyer that it will not accept until expiration of such time. In Error to the District Court of the United States for the Western District of North Carolina, at Greensboro; James E. Boyd and Edwin Y. Webb, Judges. Action by Arthur. H. Lamborn and others, trading and doing business under the firm name and style of Lamborn & Co., against M. A. Angelo and another, trading and doing business under the firm name and style of Angelo Bros. Judgment for plainAffirmed. tiffs, and defendants bring error. J. E. Alexander, of Winston-Salem, N. C. (L. M. Butler, of Winston-Salem, N. C., on the brief), for plaintiffs in error. A. B. Lovett, of Savannah, Ga. (Hitch, Denmark & Lovett, of Savannah, Ga., and Cansler & Cansler and John M. Robinson, all of Charlotte, N. C., on the brief), for defendants in error. Before WOODS, WADDILL, and ROSE, Circuit Judges. ROSE, Circuit Judge. The plaintiffs in error were defendants below and the defendants in error were plaintiffs. It will tend to clearness if they be here described by the positions they occupied in the trial court. ar. Under a contract which, except as to names, dates, and amounts, was in legal effect identical with that passed upon in Bell v. Lamborn, 2 F. (2d) 205, decided by this court at the October term, 1924, the defendants bought and the plaintiffs sold 150 barrels of standard fine granulated sugThe defendants accepted delivery of but 50 barrels and refused to take or pay for the remainder. The plaintiffs, after notice, resold the unaccepted balance of 100 barrels, and brought this suit for the difference between the contract price and the net proceeds realized on the resale. Upon the conclusion of the testimony a verdict was directed in favor of the plaintiffs. The defendants pleaded that the making of the 2 F.(2d) 855 contract was procured by the fraudulent representations of the plaintiffs, but, as the court below properly held, they did not offer any evidence legally sufficient to prove the existence of any such fraud. [1] The record does not make it clear whether the meeting of the minds of the parties to the contract was in Georgia or North Carolina, but in any event, as we held in Bell v. Lamborn, supra, as the contract was to be performed in Georgia, it was a Georgia contract, and the instructions of the court as to the measure of damages were in entire harmony with the views we expressed in that case, even if it be assumed that in this respect there is any difference between the law of the two commonwealths, a question upon which we do not intimate any opinion. [2] By the terms of the contract one-half of the sugar now in controversy was to be delivered during August or September and the other one-half during September or October. During the time specified, shipment was to be at seller's option. Until the 30th of September, the plaintiffs were not bound to treat as final any statement of the buyer's that they would not accept. Roehm v. Horst, 178 U. S. 1, 20 S. Ct. 780, 44 L. Ed. 953. On the 11th of September, the plaintiffs gave defendants notice that they elected to deliver all the sugar at once and requested shipping instructions. Defendants gave none, remaining absolutely silent. A week later, on the 18th, plaintiffs repeated their notice. Again defendants failed to answer. On the 23d and on the 27th the plaintiffs informed the defendants that in default of shipping instructions they would have to sell the sugar for the defendants' account. In the last communication the plaintiffs gave defendants 48 hours in which to answer. Still the defendants failed to make any reply. On The uncontradicted evidence shows that, in the conditions then prevailing in the sugar trade, the sale was made as speedily as it could have been, with due consideration to the rights of the defendants. the 18th of October, the plaintiff obtained an offer of 11 cents a pound for the sugar and notified the defendants to that effect. The defendants adhered to their policy of silence and the plaintiffs sold. The uncontradicted testimony shows that the sale was fairly made and for the best price obtainable. Other contentions made by the defendants have been considered and disposed of in our opinion in Bell v. Lamborn, handed down Where no objection was made, government prohibition agents were qualified to testify ky, and failure to have chemical analysis made or to qualify witnesses, did not render their testimony insufficient to sustain conviction. 3. Intoxicating liquors 236 (4)-Evidence held to connect defendant with unlawful sales by another. that bottles seized contained moonshine whis Evidence that defendant operated pool hall in which his brother sold whisky, and after one sale turned money over to defendant, who rang up amount in cash register, held sufficient to connect defendant with unlawful sales. In Error to the District Court of the United States for the District of Nebraska; Joseph W. Woodrough, Judge. Tony Pane and Ike Pane were convicted of sale and possession of intoxicating liquor, and they separately bring error. Judgments affirmed. William E. Lovely, of Omaha, Neb. (Lovely & Lovely, of Omaha, Neb., on the brief), for plaintiffs in error. George A. Keyser, Asst. U. S. Atty., of . Omaha, Neb. (James C. Kinsler, U. S. Atty., of Omaha, Neb., on the brief), for the United States. Before STONE and KENYON, Circuit Judges, and FARIS, District Judge. STONE, Circuit Judge. These are separate writs of error from convictions for violating the Prohibition Act (Comp. St. Ann. Supp. 1923, § 101384 et seq.). The convictions were upon all seven counts of the indictment. Counts 1 to 6 were for different sales of liquor. Count 7 was for possession. The sentence of each defendant was not imposed on the basis of the conviction for each count but was for three months on there;__that_different witnesses purchased the total conviction. Three points are presented here: I. [1] One is aimed at the sufficiency of the seventh count of the indictment, in that it does not state "where or how the defendants possessed the liquor." The allegations of this count are that these two parties "in the district and division aforesaid unlawfully did have in their possession about two half pints moonshine whisky, and that they then and there well knew the same to be such intoxicating liquor." In the argument to this court, counsel seemed to have waived this point and they were wise in this course as there is nothing to their contention. II. [2] It is contended that the evidence failed to show that the liquid possessed and purchased was within the act. Four witnesses positively swore to the purchase from defendants of certain amounts of moonshine whisky. The argument is that the witnesses were not first qualified to give an opinion as to the contents of the bottles and that it does not appear from the record what, if any, experience they had had with whisky which would qualify them to state the contents of these bottles and that no chemical analysis was made nor was the fluid subjected to any test to determine whether it was intoxicating liquor designed or intended for beverage purposes. While it is, of course, necessary to show that the liquid possessed and sold was within the act, yet familiarity with whisky is too recent and general to require very much expert qualification on the part of any witness, much less upon the part of prohibition agents, such as these witnesses, whose business it is to know whisky and who have frequent, contact therewith. Besides, no objection appears in the record to have been made on the ground of lack of qualifications. It was amply sufficient. III. [3] The third point urged applies to only one of the defendants, Ike Pane. This contention is that the evidence failed to connect him with the possession of the liquor. The offenses charged in six of the seven counts were not possession but sale. The evidence was that Ike Pane operated a pool hall; that Tony Pane, his brother, was in no way interested in the business nor employed from Tony Pane at the pool hall on seven different days in January, 1923, moonshine whisky. In each instance Tony Pane would go outside the pool hall and return with the bottles of whisky. At the time of one of the purchases, payment was made for the whisky to Tony Pane inside of the pool hall, and Tony walked over to the soft drink bar and handed the money to Ike Pane who rang up the amount in the cash register on the back of the bar. This last item of evidence, taken with the other evidence, is sufficient to connect Ike Pane with the unlawful sales. Both judgments should be and are affirmed. SCHALLERN DRUG CO. v. McCABE. (Circuit Court of Appeals, Eighth Circuit. December 11, 1924.) No. 6605. Bankruptcy 166(4)-Chattel mortgage accepted within four-month period, with knowledge or reasonable cause to believe mortgagor insolvent, held a "preference." Where chattel mortgagee of stock of merchandise accepted mortgage several years after sale to bankrupt and within four months prior to filing of petition, with knowledge of or reasonable cause to believe mortgagor was insolvent, mortgage constituted a "preference." [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Preference.] 2 F.(2d) 857 rupt was insolvent at the time Schallern made this investigation and from then up to the filing of the petition in bankruptcy. On February 8, 1923, Schallern procured the chattel mortgage in lieu of the endorsement of Dr. Spielman. The petition in bankruptcy was filed April 2, 1923, and the adjudication made April 24, 1923. ence under the Bankruptcy Law (Comp. ed. The proof is also clear that the bankSt. §§ 9585-9656); second, that it operated as a fraud upon the creditors of the mortgagor because the mortgagor had been allowed to remain in possession of the stock of goods, sell therefrom in the usual course of business, was not required to make any accounting in connection with such sales, was not required to make payments on the mortgage therefrom and was permitted to conduct the business in the same manner as before the mortgage was given. The trial court did not pass upon the finding as to whether the mortgage amounted to a fraud upon the creditors but based the confirmation of the report of the referee upon the ground that the mortgage operated as a preference within the bankruptcy statutes. We think that the ruling of the trial court was correct. As we think the facts show clearly that this mortgage would operate as a preference prohibited by the act, we deem it unnecessary to discuss whether the mortgage was otherwise fraudulent as to general creditors. The facts, as clearly shown from the evidence, are as follows: About December 17, 1919, appellant sold a stock of drugs with fixtures to the bankrupt, the City Drug Company. Payment therefor was made with $2,500 in cash and a note for $5,500, payable in monthly installments of $100 each. This note was executed by the company; it seems to have been the understanding, at that time, that the note was to be indorsed by the directors of the company, but only one of them, Dr. Spielman, ever indorsed it. Being satisfied that Spielman was "worth many times more than the note," appellant did not trouble itself about the matter until shortly before the mortgage was given. Some time after the sale, A. V. Schallern, the managing partner of appellant, investigated the solvency of the bankrupt. As a part of the information then secured, Schallern seems to have seen a report, made by an auditor named Janda on December 15, 1922, covering the affairs of the bankrupt. This report on its face and alone would have been sufficient to have convinced any one seeing it that the bankrupt was insolvent, or at least in such a condition that one dealing with it would be put upon serious inquiry as to solvency. But aside from this report, the evidence shows that the valuations upon some of the property asset items of the bankrupt, which valuation Schallern says he accepted in his investigation, were so clearly exaggerated that a man of his experience and familiarity with the matters in hand should not have accept From the above facts it appears that appellant, at a time within the four-month period, when the bankrupt was insolvent and when appellant knew or had reasonable cause to believe that such insolvency existed, accepted this mortgage which would operate as a preference. The decree or order confirming the report of the referee should be and is affirmed. |