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25 F.(2d)

THAMES TOWBOAT COMPANY, Libelant Appellee, v. James FIELDS, Respondent Appellee and Andrew W. Mellon, Director General of Railroads, as Agent, under Section 206 of the Transportation Act of 1920, Respondent Impleaded Appellant.

Circuit Court of Appeals, Second Circuit. April 9, 1928.

No. 220.

Appeal from the District Court of the United States for the Southern District of New York.

Macklin, Brown, Lenahan & Speer, of New York City (Horace L. Cheyney, of New York City, of counsel), for Director General.

Leo J. Curren, of New York City (Frank H. Foley, of New York City, of counsel), for James Fields.

Park, Mattison & Lynch, of New York City (Samuel Park and Anthony V. Lynch, Jr., both of New York City, of counsel), for libelant appellee.

Before MANTON, L. HAND, and AUGUSTUS N. HAND, Circuit Judges.

PER CURIAM. Decree (287 F. 155) affirmed.

2

Jack TURNER, Plaintiff in Error, v. UNITED STATES, Defendant in Error.

Circuit Court of Appeals, Fourth Circuit. April 23, 1928.

No. 2696.

In Error to the District Court of the United States for the Western District of Virginia, at Danville; Henry Clay McDowell, Judge.

Hugh T. Williams and John W. Carter, Jr., all of Danville, Va., for plaintiff in error.

J. C. Shaffer, U. S. Atty., of Roanoke, Va., and C. E. Gentry, Asst. U. S. Atty., of Charlottesville, Va.

Before WADDILL and NORTHCOTT, Circuit Judges, and McCLINTIC, District Judge.

PER CURIAM. This case is ruled by that of Dodson v. United States, 23, F. (2d)

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END OF CASES IN VOL. 25 F. (2d)

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THIS IS A KEY-NUMBER INDEX

It Supplements the Reporter Digests and Prior Reporter
Volume Index-Digests

ACCOUNT STATED.

8 (U.S.C.C.A.S.D.) Monthly accounts stated
between correspondent national banks held not
subject to impeachment, except for fraud, ac-
cident, or mistake.-Keyes v. First Nat. Bank,
25 F. (2d) 684, affirming judgment (D. C.) 20
F. (2d) 678.

ACKNOWLEDGMENT.

1. NATURE AND NECESSITY.

3 (U.S.D.C.Iowa) Iowa statute changing
prescribed form of certificate of acknowledg-
ment held not to change essentials prescribed
in another statute (Code Iowa 1924, §§ 10103,
10094; Code Iowa 1897, § 2959).-In re Meak-
ins, 25 F. (2d) 305.

II. TAKING AND CERTIFICATE.

32 (U.S.D.C.Iowa) Certificate of acknowl-
edgment indorsed on chattel mortgages held
valid, though title of acknowledging officer did
not appear in body of certificate (Code Iowa
1924, §§ 10103, 10094; Code Iowa 1897, § 2959).
-In re Meakins, 25 F. (2d) 305.

33 (U.S.D.C.Iowa) Subscription is part of
certificate of acknowledgment.-In re Meakins,
25 F.(2d) 305.

III. OPERATION AND EFFECT.

53 (U.S.D.C.Iowa) Notary's certificate of
acknowledgment to conditional sale contract,
not mentioning in body name, title, or county
of subscribing notary, held insufficient as basis
for record (Code Iowa 1924, § 10094).-In re
Holley, 25 F.(2d) 979.

ACTION.

II. NATURE AND FORM.
22 (U.S.C.C.A.N.C.) Action to impress
trust on note in possession of bank's receiver in
favor of estate of plaintiff's ward is purely
equitable.-Williams v. Stone, 25 F. (2d) 588.

ADMIRALTY.

1. JURISDICTION.

5 (U.S.D.C.Wash.) Libel by Norwegian
subject against Norwegian vessel for injuries
sustained at United States port, due to unsea-
worthiness, held within federal court's juris-
diction. The Hanna Nielsen, 25 F. (2d) 984.

18 (U.S.D.C.S.C.) Jurisdiction of United
States maritime courts, independent of foreign
law, extends to torts committed in territorial
waters of foreign powers.-Galef v. U. S., 25 F.
(2d) 134.

II. REMEDIES IN PERSONAM AND IN
REM.

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II. EXCLUSION OR EXPULSION.

18 (U.S.C.C.A.III.) Presence of aliens is
matter of governmental consent, not of right.-
Lai To Hong v. Ebey, 25 F. (2d) 714.

Congress may determine length of stay of
aliens and make question determinable by ad-
ministrative officer.-Id.

20 (U.S.C.C.A.III.) Act enlarging scope of
powers of Secretary of Labor with respect to
deportation of aliens held within power of Con-
gress (Immigration Act 1917 [Comp. St. §§
959, 960, 42894a-42891⁄4u]).-Lai To Hong v.
Ebey. 25 F. (2d) 714.

25 (U.S.C.C.A.Mass.) Adopted son of na-
tive born American citizen of Chinese race is
admissible if adopted before January 1, 1924
(Immigration Act 1924, § 28 [8 USCA § 224]).
Tillinghast v. Chin Mon ex rel. Chin Yuen, 25
F. (2d) 262.

31 (U.S.C.C.A.III.) Immigration Act of 1917
held applicable to deportation of Chinese alien
entering United States by fraud before passage
of act (Immigration Act 1917, §§ 19, 38 [8
USCA §§ 155, 178]).—Lai To Hong v. Ebey, 25
F. (2d) 714.

32(1) (U.S.C.C.A.III.) Jurisdiction of Sec-
retary of Labor in deportation proceeding held
not lost by delay of over two years between
hearing and decision (Immigration Act 1917
[Comp. St. §§ 959, 960, 42894a-42891⁄4u]).—
Lai To Hong v. Ebey, 25 F.(2d) 714.

32 (2) (U.S.C.C.A.III.) Alien has no consti-
tutional right to judicial hearing on question of
deportation.-Lai To Hong v. Ebey, 25 F. (2d)

714.

Chinese workman entering United States
fraudulently, held not entitled to judicial hear-
ing in deportation proceedings where alienage
was not denied (Immigration Act 1917, §§ 19, 38
[8 USCA §§ 155, 178]).-Id.

32 (5) (U.S.C.C.A.Hawaii) Chinese person
sought to be deported had burden of proving
right to remain in United States under claim of
(1025)

39 (U.S.D.C.S.C.) Claimant, not demanding
trial or serving notice of trial, held not entitled
25 F. (2d)-65

citizenship (8 USCA § 284).-Tom Ung Chai v.
Burnett, 25 F. (2d) 574.

32 (5) (U.S.C.C.A.Mass.) Chinese claiming
right to enter as adopted son of citizen must
show Chinese adoption law.-Tillinghast v. Chin
Mon ex rel. Chin Yuen, 25 F. (2d) 262.

32(8) (U.S.C.C.A.Hawaii) Discrepancies in
testimony of Chinese person held to justify his
deportation on ground he was not born in Unit-
ed States.-Tom Ung Chai v. Burnett, 25 F. (2d)
574.

32 (8) (U.S.C.C.A.Mass.) Evidence held in-
sufficient to show Chinese applicant was adopted
son of citizen.-Tillinghast v. Chin Mon ex rel.
Chin Yuen, 25 F. (2d) 262.

32(8) (U.S.D.C.Mass.) Discrepancies in
testimony of Chinese applicant's alleged fa-
ther and brother held too insignificant to war-
rant exclusion.-Jew Yut Chew v. Tillinghast,
25 F.(2d) 886.

32(9) (U.S.C.C.A.III.) Constitutional right
of accused to speedy trial does not apply to alien
in deportation proceedings.-Lai To Hong v.
Ebey, 25 F. (2d) 714.

32(9) (U.S.D.C.Mass.) Exclusion by rea-
son of insignificant discrepancies in testimony
of Chinese applicant's alleged father and broth-
er held to show unfair hearing.-Jew Yut Chew
v. Tillinghast, 25 F. (2d) 886.

32(12) (U.S.C.C.A.Hawaii) Chinese person
having denied making admissions to immigration
authorities discrediting his citizenship claim,
question of duress was not presented on review.
Tom Ung Chai v. Burnett, 25 F. (2d) 574.

32(13) (U.S.C.C.A.La.) Order deporting
Chinese alien held not superseded by appeal not
timely taken.-U. S. ex rel. Chin Thyn v. Loisel,
25 F. (2d) 302.

III. IMMIGRATION.

46 (U.S.C.C.A.Pa.) Member of Six Na-
tions tribe residing in Canada held authorized to
cross boundary to work as skilled structural
iron worker.-McCandless v. U. S. ex rel. Diabo,
25 F.(2d) 71, affirming order (D. C.) U. S. ex
rel. Diabo v. McCandless, 18 F. (2d) 282.

46 (U.S.D.C.Mass.) Permit for temporary
visit abroad did not give alien, in excluded class
because of illiteracy, right to re-enter United
States (8 USCA § 210, par. [f]; Immigration
Act Feb. 5, 1917, § 3 [8 USCA § 136]).—Ex
parte Di Stephano, 25 F. (2d) 902.

512 (U.S.C.C.A.N.Y.) Italian clarinetist,
admitted for temporary stay, did not forfeit ex-
emption as "artist" by failing to claim it orig-
inally (Comp. St. § 42891⁄2a(d); 8 USCA §
155).-U. S. ex rel. Gentile v. Day, 25 F. (2d)
717.

53 (U.S.D.C.Mass.) Alien seaman, allowed
to land for purpose of reshipping foreign, was
subject to deportation after reasonable time
(Immigration Act 1917 18 USCA § 101 et
seq.).-Ex parte Di Stephano, 25 F.(2d) 902.

53 (U.S.D.C.Pa.) Alien "admitted and dis-
charged for permanent residence as returning
to his home in the United States" October 22,
1923, held not subject to deportation (Act May
11, 1922 [42 Stat. 540]; Act May 26, 1924 [43
Stat. 153]).-U. S. ex rel. Hentschell v. Mc-
Candless, 25 F. (2d) 1013.

~54 (17) (U.S.C.C.A.Or.) Appellate court,
on habeas corpus by alien, is concerned only as
to whether evidence supported finding of de-
portation. Mita v. Bonham, 25 F. (2d) 11.

IV. NATURALIZATION.

62(3) (U.S.C.C.A.La.) Provision restricting
naturalization of alien seamen, serving on ves-
sels of foreign registry should be narrowly_con-
strued (Act June 29, 1906, § 4. subd. 7. as
added by Act May 9, 1918 [8 USCA § 384]).—
U. S. v. Nicolich, 25 F.(2d) 245, affirming
judgment (D. C.) 17 F. (2d) 611. and followed
in (C. C. A.) U. S. v. Persson, 25 F. (2d) 247.
Seaman admitted to United States as immi-
grant, who established domicile in good faith,
held entitled to naturalization notwithstanding
service on ships of foreign registry (Act June
29, 1906, § 4, subd. 7. as added by Act May
9, 1918 [8 USCA § 384]).—Id.

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quashing

III. DECISIONS REVIEWABLE.
(D) Finality of Determination.
78(2) (U.S.C.C.A.W.Va.) Order
service of process on ground that person served
was not agent of defendant corporation having
and appealable.-Henderson v. Richardson Co.,
no regular place of business in district is final
25 F.(2d) 225.

IV. RIGHT OF REVIEW.
(B) Estoppel, Waiver, or Agreements
Affecung Right.

161 (U.S.C.C.A.Okl.) Party accepting part
of property claimed by him and awarded by
judgment is not estopped from appealing.
Mudd v. Perry, 25 F. (2d) 85, affirming decree
(D. C.) 14 F.(2d) 430.`

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193(5) (U.S.C.C.A.Iowa) Failure of bill of
note indorser suing coindorsers for contribution
to allege maker's insolvency, not raised by ob-
jection in limine, held immaterial on appeal,
where record showed insolvency.-Hunn
Lewis, 25 F. (2d) 271.

54 (9) (U.S.C.C.A.Minn.) Evidence in de-
portation proceeding held to support finding that
alien was member of or affiliated with organiza-
tion advocating overthrow of government (8
USCA § 137).-Jurgans v. Seaman, 25 F. (2d)
35, affirming judgment (D. C.) Ex parte Jur-197(8)
gans, 17 F. (2d) 507.

54 (9) (U.S.C.C.A.Or.) Evidence held to
sustain deportation of alien for giving assist-
ance to prostitute.-Mita v. Bonham, 25 F. (2d)
11.

54(10) (U.S.C.C.A.Minn.) Denial of fair
hearing in deportation proceeding held not es-
tablished (S USCA § 137).-Jurgans v. Seaman,
25 F.(2d) 35, affirming judgment (D. C.) Ex
parte Jurgans, 17 F. (2d) 507.

V.

(U.S.C.C.A.Ark.) Objection that
waiver was not pleaded, not made during trial,
could not be raised on appeal.-New York Un-
derwriters' Fire Ins. Co. v. Malham & Co., 25
F. (2d) 415.

203 (2) (U.S.C.C.A.Ark.) Appellate court
will not review objections to evidence not pre-
sented to trial court.-American Petroleum Co.
v. Missouri Pac. Ry. Co., 25 F. (2d) 441.

231(3) (U.S.C.C.A.Ky.) Where objections
to alleged incompetent testimony stated no

For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER

grounds therefor, they are not open to consider-
ation on appeal.-Continental Ins. Co. of City of
New York v. Fortner, 25 F. (2d) 398.

236 (2) (U.S.C.C.A.N.Y.) Point relative to
variance is not well taken, in absence of motion
to dismiss complaint at close of case.-Trans-
marine Corporation v. Charles H. Levitt & Co.,
25 F. (2d) 275.

237(5) (U.S.C.C.A.Ark.) Appellate court
will not review sufficiency of evidence not pre-
sented to trial court by request to direct verdict.
-American Petroleum Co. v. Missouri Pac.
Ry. Co., 25 F. (2d) 441.

VII. REQUISITES AND PROCEEDINGS
FOR TRANSFER OF CAUSE.
(A) Time of Taking Proceedings.
356 (U.S.C.C.A.Iowa) Statute limiting time
for appeal is mandatory and jurisdictional.-
Broders v. Lage, 25 F. (2d) 288, dismissing ap-
peal (D. C.) In re Lage, 19 F. (2d) 153.

(D) Writ of Error, Citation, or Notice.
←407(1) (U.S.C.C.A.W.Va.) Counsel special-
ly appearing to move to quash service of process
must be deemed defendant's agents, on whom
citation can be served on appeal from order
granting motion.-Henderson v. Richardson Co.,
25 F.(2d) 225.

(E) Entry, Docketing, and Appearance.

435 (U.S.C.C.A.Iowa) Objection to service
of citation after expiration of time for appeal-
ing held waived by accepting service and gen-
eral appearance in appellate court.-Hunn v.
Lewis, 25 F. (2d) 271.

VIII. EFFECT OF TRANSFER OF CAUSE
OR PROCEEDINGS THEREFOR.
(A) Powers and Proceedings of Lower

Court.

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(A) Matters to be Shown by Record.
499 (3) (U.S.C.C.A.Ky.) Incompetency of
evidence will not be reviewed where record did
not show such objection was made.-Clark v.
McNeill, 25 F. (2d) 247.

(B) Scope and Contents of Record.
526 (U.S.C.C.A.Iowa) Record on appeal
should contain report and findings of master, ex-
ceptions thereto and master's certificate of evi-
dence.-Hunn v. Lewis, 25 F.(2d) 271.

(K) Questions Presented for Review.

687 (U.S.C.C.A.Iowa) Assignments of error
reciting that court erred in special master's find-
ings held futile, in absence from record of mas-
ter's findings, exceptions thereto.-Hunn
Lewis, 25 F. (2d) 271.

V.

of

694(1) (U.S.C.C.A.Iowa) Assignments
error reciting that court erred in special mas-
ter's findings held futile, in absence from rec-
ord of certificate of evidence.-Hunn v. Lewis,
25 F.(2d) 271.

XI. ASSIGNMENT OF ERRORS.

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ment.-Tillinghast v. Chin Mon ex rel. Chin
Yuen, 25 F. (2d) 262.

~~~731 (5) (U.S.C.C.A.Mass.) Sufficiency of
evidence to show applicant was adopted son of
citizen held presented by assignment of error in
ruling in habeas corpus proceeding that applicant
was unlawfully restrained of liberty.-Tillinghast
v. Chin Mon ex rel. Chin Yuen, 25 F. (2d) 262.

733 (U.S.C.C.A.Ark.) Assignments that de-
cree is contrary to evidence and that court erred
in holding held sufficient to invoke jurisdiction
of appellate court.-Coats v. Barton, 25 F. (2d)
813.

750 (7) (U.S.C.C.A.Mo.) Assignments be-
cause court found certain facts and failed to
render judgment for plaintiff, and because of
certain declarations of law, presented no ques-
tion, except whether findings supported judg-
ment.-Dreyer Commission Co. v. Hellmich, 25
F. (2d) 408.

XIII. DISMISSAL, WITHDRAWAL, OR

ABANDONMENT.

776 (U.S.C.C.A.N.J.) Appellant cannot as
of right dismiss own appeal.-Greenville Bank-
ing & Trust Co. v. Selcow, 25 F. (2d) 78.

XVI. REVIEW.

(A) Scope and Extent in General.

837 (11) (U.S.C.C.A.Ky.) Hearsay testi-
mony, not objected to, is properly before re-
viewing court.-Clark v. McNeill, 25 F. (2d)
247.

843 (2) (U.S.C.C.A.W.Va.) Question arising
on appeal from order dismissing suit as to some
defendants need not be considered on appeal
from order quashing service of process on in-
dividual defendant as corporate defendants'
agent.-Henderson v. Richardson Co., 25 F. (2d)

225.

(B) Interlocutory, Collateral, and Supple-
mentary Proceedings and Questions.

874 (2) (U.S.C.C.A.Neb.) Decision remand-
ing cause removed cannot be reviewed on ap-
peal from decree in ancillary suit for injanc-
tion.-Chicago, St. P., M. & O. Ry. Co. v. Hen-
sley, 25 F. (2d) 861.

(C) Parties Entitled to Allege Error.

882 (21) (U.S.C.C.A.) Respondent, who led
appellant to believe record was sufficient, could
not claim on appeal that point was not covered
by findings.-Fraser v. Commissioner of Inter-
nal Revenue, 25 F. (2d) 653.

(E) Presumptions.

909 (5) (U.S.C.C.A.Miss.) It will be pre-
sumed on appeal, in support of decree award-
ing escrow deposit to seller, that seller was
able to perform, where record does not show
contrary.-Barrett v. Gay, 25 F. (2d) 565.

918(1) (U.S.C.C.A.Ky.) It will be assumed
that, if objection had been made to alleged in-
sufficiency of pleadings, court would have grant-
ed permission to amend.-Continental Ins. Co.
of City of New York v. Fortner, 25 F. (2d) 398.

927 (7) (U.S.C.C.A.Ky.) In reviewing di-
rected verdict for defendant, evidence is con-
sidered in light most favorable to plaintiff.—
Clark v. McNeill, 25 F. (2d) 247.

927 (7) (U.S.C.C.A.W.Va.) In reviewing
judgment for plaintiff, after refusal to direct
verdict for defendant, appellate court must ac-
cept plaintiff's testimony as true.-Chesapeake
& O. Ry. Co. v. Waid, 25 F. (2d) 366.

927 (7) (U.S.C.C.A.Wis.) Court, reviewing
directed verdict for defendant, views evidence
most favorably to plaintiff.-Croty v. Pullman
Co., 25 F. (2d) 563.

(F) Discretion of Lower Court.
961 (U.S.C.C.A.Hawaii) Whether dedimus
potestatem is necessary to prevent failure or
delay of justice is for trial court to determine

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