VAN (Circuit RIPER et al. Court four other July Appeals, UNITED 1926.) cases. VAN Second STATES, RIPER Circuit. 13F.(3d) and *1 v. UNITED ly identified sations speaking from defendants’ suant to spiracy, STATES to joint persons render them by scheme substance of representing to admissible. defraud and for offices telephone themselves held sufficient- conver- con- 401-403, 405, 406. Nos. Error to In Unit- District Court of the for States New Southern District Conspiracy <§=32. 1. among York. defraud, shared Scheme to conspiracy. several, becomes Lewis C. Van and another, Fred A. <§=43(12) <§=48(8). another, Harry Hedrick, Alex- office Conspiracy 2. —Post Code, § Prosecution under Criminal Ackerson, ander and William W. mailing pursu- (Comp. 10385), for letters §St. mailing pur- another were convicted of letters joint and for con- to defraud ant to scheme joint suant defraud, to scheme con- to and for separate spiracy, schemes held not to involve spiracy Code, 215, to Criminal violate § defraud, continuance same because to by they defendants. bring different error. scheme counts, Affirmed as to some and reversed as to others. Conspiracy <§=32 office 3. <®=35. —Post charged defendants, under Criminal Writs error to That convic- mailing 10385), Code, (Comp. St. § § tion of the United District for States Court pursuant joint to defraud and to scheme letters (Saw- the Southern District of conspiracy, belief that stocks telle, J., presiding), upon an indictment in by letters, was suffi- ascribed to the value ten offense. counts. The first nine for cient to constitute counts were violation of section 215 of the Criminal Code <§=49. Conspiracy <§=47 office —Post (Comp. 10385) mailing sep- St. § ten prosecution Evidence, under Criminal mailing pursuant joint 10385), arate letters Code, (Comp. to scheme to for § 215 St. § joint pursuant to defraud and scheme letters for to defraud; conspiracy tenth for a of all conspiracy, held as to each defend- sufficient defendants to violate section. The counts. ant to some plaintiffs in error Riper, are Lewis C. Van <§=925[/2(4). Criminal law Ish, Charles Van William Wil- Riper, C. verdict, newspapers by jury If seen affected Hedrick, liam A. Harry Fred judge. matter held of discretion for trial Maloney, McCluskey, Thomas J. and Alexan- <§=422(l). 6. Criminal law all der Ackerson. All convicted agreement When for men enter into unlaw- eighth. counts but All were sentenced to they end, agents ful became hoc an- ad years five on count five acts, pursuant other, and declarations done years 6, 7, on counts purpose, competent against to common all. years to two the sentences to count <§=59(1). 7. Criminal law concurrently. run joining existing group engaged Person alleged The indictment a scheme de- joint responsibil- commission of crimes assumes fraud in sale of stock of the Parco ity for all done theretofore. exceeding par Company prices Oil <@=423(8). 8. Criminal law share, arbitrarily value of 10 cents a fixed prosecution against In several defendants regardless of its real market value. Code, (Comp. for violation Criminal § to send the mails pursnant mailing 16385), St. § letters joint conspiracy, to defraud and for writings containing scheme pamphlet and other tilings done certain before defend- pertaining false information and advice conspiracy ants came held admissible. Company, the Ertel the Pareo companies. several other The defendants <§=673(4) 9. Criminal law —Instruction falsely report prospective buyers bound acts declarations they conspiracy of others after withdrew Company the Parco stock to rulings sufficient, held without formal on mo- develop beyond property, which, all of (Criminal Code, tions out strike § selling, go treasury, cost should [Comp. 10385]). §St. only profits that the of the sellers would he prosecution, Code, In under § Criminal (Comp. mailing 10385), pur- St. § royalty letters production, a small on actual joint suant to defraud and con- nothing sell, Hedrick had and that spiracy, instruction that defendants who had price go higher. of the stock would much by subsequent withdrawn not bound acts holdings The defendants would find out the and sufficient, declarafions those who remained held rulings without formal motions pretend shareholders, strike out evidence. had an offer blocks stock a little lar- persuade them to fill ger, their hold- <§=427(5). 10. Criminal law ings, they might so that fulfill the offer for prosecution, Code, under Criminal 215§ gt. (Comp. 10385), mailing larger pur- block. letters E.(2d) —61 *2 REPORTER, FEDERAL 2d 13 SERIES posting produce drilling. laid the shift of Sweet counts The first seven August telegram Kuykendall sent a following to Hedrick that dates: of letters on the 1924, 500-barrel, 15, July was sure of a he had well and that October August 29, upper cased off a 50-barrel in sec- well the July 19, October count, Kuykendall given eighth tion. he had The denied that 17, 1925. April 1924, and May any prospective and quantity, a of and both he laid letter proven, which was 30,1925. pro- that a April Wilcox ever said ninth, one on the 4,1925; Ripers ducing in off. two Van well had eased Hedrick the January, In an adopted who did New York Brown, these statements named a defendant and a issue of the Financial and in few Analyst, 15 Moore 201 at room rented appeal, days got Sweet, repeating for the a from letter a York, to conduct New February 28th adding On and the had been driven of stock. well general sale deep. Van the pros- the elder feet Sweet dilated known Hedrick, pects, of a he had made 205 across told him contract before, hired time for some roogi a dig deeper $25 publish paper a with Wilcox to feet began to hall, where the money. May 20th promot- foot, On Analyst, and asked whieh the Financial called Kuykendall and contract Northern Sweet a the Great sale interests ed a interest got of shares whieh Sweet three-fourths Syndicate, later and Mine Gold Compa- Kuykendall’s lease, payment $5,000. on the Parco Company and the Ertel $1,000 up- engaged $500 Hedrick the Sweet advanced and Hedrick Shortly thereafter ny. sales- and on the contract between Wilcox Resnick, a drilling continued, part but no his room Rose so that the and took men Ri- employed by Kuykendall’s paid. Van formerly money was ever stenographer incorporat- of. telephones, Company one which The Parco Oil put in two He per. 17th and the April return; 250,000 on on June 5th Sweet’s was discontinued de- March, In May 12th. of stock issued shares to Woodin from one heard him to Sweet transfer fendant consideration drilled whieh was oil in the whieh Sweet lease, well of Sweet’s interest Kuyken- man named by a Wyoming agreed convey to Hedrick. had meanwhile to state Kuy- from him a letter 250,000 showed Woodin dall. directors authorized issue .The take more that would kendall, saying transfer of shares Hedrick for more to im- the well complete to adjacent appears but so far as lease, Kuykendall’s which, in property, impor- The matter is of. prove not issued. largely. produce began sale Thereupon Hedrick was sure tance. judgment, treasury stock, inter- had several Brown of Pareo’s shares The defendant office, to exchanges latter’s shares in of that stock for Sweet at make views Hedrick, and brought in his other Company. the Ertel In these as eventually proposal Kuykendall’s Me- used as salesmen discussed sales he the two 9,May Eventually on him after dispose Cluskey, who had returned to well. agreement made an Riper was one of and Hedrick absence. L. C. Van brief Sweet complete necessary to money Parco organizers of the furnish existing corporation, drilling. helped An Financial preparation in the per Analyst. Oil Company, employed Ertel cent, His son was his of- per cent., well, Sweet interest him, fice circulars, mailed out any associates signed receipts money. and Hedrick be raised money was to cent. The per through Wyoming Brown went Compa- in the Ertel of stock July stayed sales 10th there until the mid- Hedrick, shortly before the conclusion ny. September, paying dle Wilcox for the April 23d, in Financial drilling. telegrams contract on constantly df the He sent buy the Ertel urged public Analyst, Hedrick, which showed that no oil in com- Ripers were and the Van quantities obtained, mercial had been but stock, in Moore street. their offices showing then that there of oil continued 10th, day after the contract May might On expected. and that a 100-barrel well Wyoming left for stopped, was closed Septem- on the 13th of Kuykendall, vestigate saw ber lack of funds. No oil found, driller, Wilcox, explained to who, with abandoned, forfeited, the lease well situation. Traces oil August him stock became valueless. On 10th pretty steadily, none been found in com- Hedrick left York for British Columbia amount, though Kuykendall mercial both and and visited the well en route. He arrived sanguine might Wilcox the well spent 14th four or five long-distance she reach that If he would fill number of stock to tice amount of the stantial advance be sold at a necessary chase mercially, urged that another lease 3,000 gallons daily, $3,000 payment ever was ever started rent of rick, a news bulletin West ley acquired which who was its extolling issued a lease conferences economy own certain called ture with left the On the used on the letters ther connection with abandoned it. His after his return continued. and he expenditure of the Tingley, who claimed to stock, the Riper was left Hedrick was days matter, leases of In their The defendants July ‘29th, closing of the bought, refining gasoline in accordance with plant and which heard paid. was never patents, price. Virginia, his there. a customer who Nitro, left tests, Maloney strength $500 copy of buy more, of property capacity, shares the customer though Tingley thought might a man named no instructions accepted on editing of the sales of stock it was oil lands West profit. production. process. On which he This block not shown rights but was president, on make the person telephone. large and had a order, which paid. Tingley never called for month Va. plant his absence in upon representations agreement, to the engaged in another ven- block of stock at a sub- in certain charge of the sales this as stated moneys which Rose June, 1924, name continued on the was McCluskey to he transferred to Hed- improved. the whole block could also not shown either Only Analyst, setting forth had resulted Tingley showed Sweet said had been had the never provided the customer’s to have made a had bulíetins, as improvements, have a new agreement Hedrick turn announced enterprise to have its use purchases At Resnick August present. 29th. No Tingley. Shortly plant at a Analyst, Frequently they behalf Parco VAN RIP August 4, property. The already bought larger representation operated the elder some of these Virginia leaseholds in had capacity proposal for in the agreement, acquisition out 22d by Sweet, said that than the *3 came in. buy, after use the made at and the Finally, process to have EH UNITED before, print- 13F.(Sd) prac- Ting- place great com- pur- had. fur- met dis- his fraudulent; cerned. minated nection with offices,Loftus & admitted Holton It is “downtown” separate charges sell Pareo and other stocks down to Douglas & Co. The firm of Holton & Ab- 10th, and Ackerson is not shown to have been are that the Matthews & Maloney, or McCluskey, who continued to connected with the subsequent activities of under the name of James Loftus he did business under the bott was apparently bank personally did business and the stenographer, Resniek, together with the elder with the scheme up state’s the defendant Rabinowitz, left the closed. The defendant Ackerson had known ference with him there, at which Ackerson Maloney and asked him left on the brother’s office downtown. He had a con- engaged telephone. Ackerson loney and McCluskey earlier still. Before rick’s went to Van defendants at Moore street continued to of- fer stock Van organized, this must Hedrick’s October, Ackerson in November in the At ease defendants were concerned telephones argued that the left Riper accounts Riper conspiracy office which he evidence, STATES & chief offices. properly Europe before him to sell shares of stock over the Van against all Abbott, hearing, assumed the last third, that various evidence Co., went defendants were tried before the Parco offices; one in some time first at mistried for this points Riper the end of day had been taken out of Hed- scheme, separately deny —the Ish, Co., Craig, and the Holton & Abbott, and H. P. but had not been identified opened which are described as the at the times limited to those the month of October. but it was of October, and the elder to this second raised who had Europe, first discontinued on first, supposed also hired H. P. Moore offices, to call him at his alias, early second, Fifth avenue under younger and conducted the defendants, that it was in fact been September point. upon that which all Matthews & began, Co.,& name of Douglas argued these had ter- Martin reason; next, Ackerson saw which it con- Company up in November. untrue. firm. Later later that started these writs Van McCluskey their con- to the end connected “uptown” Ackerson secretary, and that up where he and Ma- turned Sands, Craig, & April Riper Sweet May. Co., two The Co. REPORTER, 2d 13 FEDERAL SERIES City, York ment of Joseph Kroppy, F. New because Ackerson already suggested plaintiff Maloney go in error Hedrick. that he City, employ’before York Hussey, of New Alexander T. elder left, Ish. plaintiffs under in error Sweet circumstances which showed Mass., that he Waltham, Dowd, acquainted J. himself (cid:127)Patrick with Van Mass., RipeFs Boston, plans, Feeney,’ of better John P. himself. City, reviving York In so Mahoney, Thomas H. New moribund business and MeCluskey. taking over both plaintiffs in error salesmen and Resniek the stenographer, Jr., City, Foulds, Ackerson. Andrew continued the old Riper. scheme and the plaintiff organization, in error L. C. Van part. least in *4 At any City, rate the Cecil, might York of New Harlah have con- cluded, just Riper. they as might plaintiff in error C. E. have concluded that, offering City, York Pareo Ackerson, they of New stock after Alexander opened “uptown” the offices, they pro were act- se. ing City, knowledge Ackerson’s Pantaleoni, Jr., and in ac- Guido cordance with their original understanding States. for the United with him. Thus appears it to us that the MACK, HAND, and MANTON, Before judge learned right in overruling the Judges. Circuit point. [3, of chief 4] importance, how ever, that, is not but whether the case should stating (after Judge HAND, Circuit gone have to the jury. The defendants have reason see no [1,2] We can above). facts as .argued their ignoring position, ease ease in this two say involved there were that Durland v. U. S., 161 U. S. S. Ct. Such separate schemes defraud'. 508, 40 L. Ed. 709, which set rule, down the a con among several, becomes when shared long recognized deceit, promise in civil that a conspiracy count in fact the spiracy, so that promisor which does not per mean to charge, ex nothing adds of substance form, or cannot, knows that he good as of the prosecution cept it relieves as ground prosecution misrepresenta as a showing of all necessity of the connection tion of some fact outside mind. It was charged the date of the defendants to necessary prosecution here in the indict posting of the letters laid upon rest the statements made about the well govern trial The same rules which ment. plant Nitro, Pareo or the or to show that applicable to conspiracies are therefore the defendants them be knew false. It conspiracy was Hence, if such trials. prove for it they that had no be con continuous, to defraud was the scheme they lief that the stocks the value which of the true that most quite It is tinuous. they them, wholly ascribed to or that and left entered several sceptical prospects as to the well and this, ap times, and will at different scheme represented property. They them result, but it an effect pear, had prospects, believing in these selves separate a series of not turn it did likely material to influence that was a fact identity agree mere We that schemes. recently very their customers. We have twice two make identical schemes will not content question, no more discussed the and need do participants (Terry have no common our Bentel v. than refer to own decisions. 28), 9], 7 C. A. U. S. v. [C. F.[2d] Knick S., F.(2d) U. June definitively conspiracy may Merchandising S., 13 F. erbocker Co. U. though participants abandoned, some jury might 544, July 14, (2d) 1926. The later, is defined it because it resurrect defendants because therefore convict these engage by in it as persons who much posi a fax better they concluded they But in the purposes have view. unsophisticated pub judge than the ’tion to bar case at sold sold, they had no they lic whom very stock from the sell Pareo or tried to (cid:127) striking oil or possibility of in the belief beginning May June until plant’s becoming a valuable gasoline They was stopped. whole business If gamble. merest thought asset, nucleus which the rest formed it did belief than no more they had slipped and to which Ackerson and away, success, predictions gaudy justify their Rabinowitz, Brown, for and later a second they might protest that excuse to nor is it an time, adhered. It was deceived. have been themselves an interval Moreover, there was were, they say whether or stock, there was abandon- Van count, they from July 15th, inference ever to be er— sue. tember were made after that date enough. that Hedrick from the August 30th. He for for Moore business, could be found to have and-that until goes, by promises Whatever their shares; mained completed, way or the suaded October 18th. Whether or connection of illusion while in Aekerson’s continued and the “downtown” evidence of the deceits case is the well which Moreover, the Whatever These defendants indeed, jury holding example, knowledge they issue Van November, limited to the street offices after i. too open, throughout, they were without that he shared with the rest what- e., “reloading them,” there Maloney and he was in active Charles E. Riper had been were a other. plain betrays 3.924, Lewis E. Van in our out the justified in the issue of fraud at may Lewis E. Van equally was ignorance shareholders to take and he was an justified disposition outset, did not were made could have be said as opinion, promises precise the scheme as we closely had. in concluding argument, ,an date MeCluskey. known, found market. knew, further officer of the Parco earlier period, say Riper. connected with the finally while Riper. VAN Hedrick left on and more If, is time with the inevitable— an associated with supposing Riper charge it was had no further not for thereafter, employ. unimportant; had as the as we that on shown already said. the earliest holdings, justification without RIPER Analyst abandon at belief one in Hedrick’s the future offices re- any they per- stopped, wrong with the all that the least a original rest. of the phrase think, 13F.(2d) prop- sales Sep- new not UNITED STATES v. as, is- he It is is it else lows, he remained in the scheme and in the Until he dissociated himself from Ms fel- presumably keep sell New York a and accessories before the not tinction which was ever subject. do ing criminally responsible he had cut his communications ness. On the Wyoming upon their used that he left New him, extremis, done matters absolute when we norance eannot drawal quaintance especially a course, overheard Riper’s son, and That principal through implied his appears to us that the extent not he was the It stock, commit crime jury. insufficiency of the in oral communications on all the circulars and chiefly where must have learned the facts. without may have been the ease incredible point. absence, is to-day agree from recognize else; argued That crime but that supposing consider that he was generally which he had created more than with what went “reloading” operations. he subordinate, may go based name. He is also said in the Pareo stock. It Hedrick left an his distinguish he had been head and Harry Hedrick. contrary, several use his name within that certainty on. purposes that he could not be held consent, engaged daily in his used his name and York on argument. Among that she heard especially than that of theory He knew that no means before affairs were in days in such cases a front; ho MeCluskey at work his between even fact, important August privy should on must rest with what took stopped impossible. But authority that a to examine the with correspondence, supposed organization agent. is, indeed, be here; with his name was if Rosnick is insists proves to its sales. along in imputed Lewis Van have been customers. principals 10th. of his ac- superiors. man only his hear- the busi- it would any over But we to have in such We, of *5 charge is not place office, with- man, may that true dis- We ig- at conspiracy. This defendant If only slight a those connec- who were left had di- tion verged widely with the from the enterprise, prac- it would in earlier our common appropriate tices, question might arise; a reduce his sen- did tence. But with that nothing sales, we have not. conduct of do. least He constantly through August, at his the jury might father’s office in find to be room 201 part Moore of a scheme part and took to which Hedrick remained the business, at party. least to the extent of re- ceipting for the money in, However, taken it is necessary and of depend signing, dictating, personal some of the letters observations at Wyoming, REPORTER, 2d SERIES 13 FEDERAL was He some of left, for it was at the addressed office and he when what was done the mail to customers. One instance far jury how clearly proved against him of an interview him the told June, return on his com- Peck, one of the Peek customers. 50-barrel in a casing especially truth, professed Ish plained being tricked, throughout Brown’s wires far well, and how however, complaint. Later, agree hardly eyes. It open his July served Peek’s by signing transaction Ish ratified the engaged in de- men were credible from evidence also certificate. There was say jury towas The- ceiving each other. suppose that Ish could whieh the facts, how informed much was how try to secure on one of the salesmen set value, and the stock believed that far told Peck, he had money further charge supposed directly in while shares. Ish he would not use for new honest. scheme was the stock him in a relation to incident shows whatever warrant Finally, there was no basis, taken with selling which formed shares all the Pareo saying that took might depend. It rest, on whieh 250,000 conceding treasury stock, September, very place at the end got the «well Hedrick whieh shares enterprise clearly whole time market value had no though the asset such, not have Any sold could shares doomed. whieh only shares time. at the alto- seller was innocent, unless the treasury stock regarded as possibly could com- of the ignorant condition gether of the 750,000 issued pany. only best At leases Nitro. 8th, for the Ackerson. cent, com- of the capitalization per shares, and treasury *6 become appears, had ever pany had, far so This defendant cent, prospectus per only 10 the end until nothing to do with the such. were all shares issued, stated elder though known the he had of October, to Tefft sales indefensible peculiarly told He Maloney before. Riper and hon- Hedrick’s light upon to throw served Riper’s proposed Yan withdraw- Maloney of esty. of- Maloney, and- surprise al, which was he whieh employment in the office him fered and Ish. opened at 500 up. This he proposed to set and company’s president, November, Sweet was middle about the Fifth avenue Kuykendall and negotiated offices, with the contract street over, from the Moore taking is .that His defense Tingley. Resnick, em- MeCluskey, lease with Maloney, being said what was aware of was not he one Rabinowitz. ploying addition 15 out from Moore circulars whieh went firm was James Loftus he chose for the name his letter Hedrick It was on there disputed street. whether Co.,& it was containing issued, adopt- first circulars Ackerson himself Loftus. ever was a casing about in the 50-barrel false statement alias, Sands, Martin and on his return talked stocks; being saw the busi- MeCluskey sold of- He at times Hedrick. dispute with is a Again, there ness. sold, 15 Moore attended some fices at cannot but that we Parco shares course, impossible is, It meetings testimony there. It is that there was settle. say that he must have known how the effect; which, testimony to that we sold, necessary. nor is A stock it it, pass upon we should not hes- called closely who connects himself with man so changed firm Later the itate believe. enterprise presumably has Abbott, such a live & after Rabinowitz name to Holton it, keep interest in whieh leads him to left, Brown, who had drifted back opportunities formed.' His for information taken on Acker- had been Wyoming, get justify Douglas Craig, and motive conclusion & Co. and Mat- son. H. P. may which he be called to answer. ghostly somewhat but & have a thews Co. end the lies far firms, how all of unimportant'relation has succeeded. In the case at bar his ephemeral creatures, apparently well proved Wyoming misstatements purposes of their creators. suited well no doubt went far to overthrow his showing amply justified jury story, any but in case not for guilty. issue us. As have said of finding we Ackerson secretary was the apparently Ish sales of Parco MeCluskey, only part enterprise. a small As in time, them; sell or effort to shares at that Riper, younger, the case Yan preposterous to ar- It the barest fraud. reasonable to reduce right sentence. say Yet had no gue that again enough Ackerson, dishonestly himself evidence to who clothed there hold him. Foster made. ter & under a norant of the means which the says that he rested with him nates were about. Mon do not planation common Cluskey and took over the ruins However, Ackerson was not testified for the active any enterprises Maloney Co. was formed on must have known what after enough trap false to make of what assistants, set was not Api’il Lenroot, name, employing to show If he had a business prosecution, expressly in the firms of J. A. for the and that J. it, of a broken-down keep VAN RIPER v. April 10, and he did not. an innocent ex- Hitchman C. & of such a kind its face was aloof and guileless, his subordi- such Rabinowitz, profits connected cheats as and Mc- A. X3F.(Sd) Fos- ig- UNITED sumes 259, 260, on Crimes 181 Mass. A. Mut. L. Ins. People competent. Criminal son, merely done theretofore. 23 S. Ct. 229, purpose, 1918C, 497, joint 249, acts, responsibility STATES crimes group 21 Am. Dec. all Mather, Law, 38 S. 294, 184, 194, (8th Ed.) 190; But it is also do, narrative declarations Co. v. Ann. C. Co. v. Ct. and, are L. Ed. 4 Wend. 642. For Anonymous, 6 Mod. 65, 63 N. E. Hillmon, Cas. when a competent for all that has been 122; 62 L. Ed. declarations 446; 1918B, Mitchell, Comm. v. (N. Y.) engaged, he part 421; party joins an 188 U. S. Bishop, For this against all. 461; 260, L. R. reason all 245 U. S. 1 Russell are Rogers, may Conn. 258, 208, rea 967 law 43; as and have What enter themselves and to those who were then in the upon most reason to declarations judge. conspiracy. mailed. Such declarations are admitted so, it needs no more than an allusion. ter Ackerson in the scheme at the time when the no to the viction enough that for five months he was attached fendant was not letters laid in eounis connected with it. Therefore we must con- 37 ters were Ackerson clude that that the evidence will not does not warrant acy [6, The crime consists son’s tween them. Thus S. over three months after he had left Acker- ^[5] 7] Ct. rulings in accessory (U. Ackerson’s motion to amend the return count. On that become ad into an important was a matter no doctrine of it employ substantive law Error is one does of happens, apparently by S. v. saw suppose at the ported made “a Ackerson, except the letters of certain of the agreement for an because It is true that Young, affected to the crime then committed. even assigned L. Ed. hoc pursuant in admission of office of that the the inference that ho was the scheme when the let- though during agents for partnership the failure to was not a laid in the discretion for the trial of crime. their *7 548), law because of and 9 were some differences be- does not will, posting U. S. newspapers Lenroot, support verdict; Elkins on the and if evidence. The defendants to unlawful because it is occupied evidence, mere principal There When men counts was of the let- implicate limit the once saw done after many the con- another, common but that conspir- crime.” law ehanee, posted. but, which is no time end, de- 34 against those or if than —formal tions, mained, conspiracy; responsible actually ly pose, colloquial charge. and would have served those who had left the large part ings upon mit since admission over 2600 it Ackerson what The trial Ackerson came into the after he had left on that was done before he entered against Brown v. U. [8, fact so withdrawn. This told the was, they L. Ed. 9] conspiracy quite proof, done strictly speaking improper but to confuse the left the not to consider the even they It was therefore however, necessary to do as nor was he bound concluded that him, seven judge whether thereafter, the motions to strike out typed pages though was to caution him all for the acts that it was effectively rulings S., who had left matter left, S. evidence, argued weeks; declined to make good repeated any Ct. made in any Logan obviously There April 10,1925. unimaginable striking U. to be dealt time, faith the record consists of entirely proper enterprise. given of as— jury. Very proper any S. possibly v. U. conspiracy, evidence, objections pursuance he was no indeed, conceivable 36 L. Ed. withdrawn from been done before told them those who re defendant had MeCluskey not what was out jury their declara October what S., specific inwith S. prolixity, to admit evidence, The txial more so respects All that filled in bo used against against length. Ct. proof. longer of the but it to ad U. S. pur they fact rat did REPORTER, 2d 13 FEDERAL SERIES 90S (cid:127)complete correspondence is course, the issue good swer, professing to may be voice of his jury. This were some awrite inevitably depended upon the witness’ speaker. think that and allow in the moment what he must nition dence was often ness on that. name, has speaking from the officesat 15 Moore formal errors necessary, it would reduce the whole matter is employ our criminal defendants and spect sophistries cause nine suming, however, proof-tight compartments, have est deed, tremely doubtful one, ^[10] more telephone Indeed, “uptown,” brought showing was called wire, eases out professed lay any all the eounts in the seems to us continue to Hedrick, or letter, it of the voice. letter, properly of the defendants. enough the most sterile rulings to receive a In most If, serious instances only who which the whole legal, is identification of the talks acquaintance proof, procedure interlocutor, of ten it is competency of the on the would to be persons at the other represented themselves sufficiently case highly unsatisfactory; but there important done here. example, importance.« have between customers identity n that come cases who give evidence. reasoning on crying telephone. We able in our of this system divide telephone question of evidence usé at another. addressed to Other circumstances the instruction of some one pervaded from the can generally gave logomachy technical, since them, impossible for indictment such Usually was the witness based a man were is the to hai’dly admitted, scandal, judgment Perhaps chief his mind kind it recognize Reversals forget identify the contents admonitions We though call speaker trial be for addressee, testimony disrepute. prima facie admission which a another, rest to insist the wit end, do, end of domot in' at one *8 recog street, might is of a be a once 10. into struction Co. Western Union evi up As- an the the The re- ex- to to - probable him as the identified. to allow narily he was might conclude timony was office, salesmen. deed, we speak from the offices seems unite fendants, The chance that these whom sales munication for the declaration of the tablish certainly tomers. The calls were sure, v. v. course, the officesat er Ice Co. v. 69 A. cept Bank, fice of the St. Cal. Sheen, 2153. The case MeCluskey, Detroit, Leib, As The interview with some one found In the case at Rep. 172, sold, kind of others proved that- privy suggested, 405, 16 and the other to sell a theoretical judgment the may be L. R. the offices Hedrick, 125 P. presumably the declarant calls Therefore, we think that the person party it, Ill. etc., to Ky. 28, Of competent. identity; proof. Gardiner, case of some one" L. A. 15 Moore solicitation Md. not that but it to Ann. Cas. A. course, this did not that he was either R. Co., substantially the substance itself bar to some 242; the' is affirmed way office whose 1918D, Maloney and on counts speaker was sold proof find question. uptown. 200 Mich. Parco stock was possibility that others devices (N. but even known person. etc., in which Godair v. circumstances 72 A. N. E. used S. W. by any was the name he 447; speaker cannot S.) extremely remote. 715; Co., Md. salesman in the the defendants 1, as follows: sure used, only to 466; to us so im- again Knickerbock 1034; There Holzhauer v. But customers who Tel. of the same, 3, beguile then as we Pareo Union Con one outside Ham. Nat. same as it sufficiently gave; at the of Wigmore, 5, 6, and Maloney, later, 116 Am. to make by the identify Co., witness, did Theisen enough the de- 166 N. should almost Miller is, of them. stock their ordi- com cus- tes- ex- es established, long origin 1, 2, is as it con on counts Riper, As to L. C. Van Wig- 3, 5, 6, 10. in substance. consecutive tinues 5, 6, 1, 3, on counts and 10. As more, 2153. § 3, 5, 6, Ish, As to on counts 10. hold, though decisions with entire Riper, on counts As to C. a unanimity, that when witness calls at 6, and 10. telephone in a proper number book MeCluskey, Maloney and on all As to relevant, person whose admissions eounts. gets professing to be an answer from Ackerson, on prima proof is facie count person called, As is, equal the other counts it identity; proof As to reversed. result, counts Judge read this 1 and 6. except as to MANTON, opinion, Hedrick, in MARION concurred absence, has respect COUNTY 13F.(Sfl) ion remanded, with directions. a motion to set tiffs, defendant COURT v. County, RIDGE W. Va. brings aside From error. Reversed judgment for order denying plain- Morgan, and John Ogden, M. E. M. W. Va., Fairmont, Mason, Jr., W. all W. in error. plaintiff Wheeling, Coniff, Va., J. W. John VA., COURT, W. MARION COUNTY et al. RIDGE error. Appeals, (Circuit Fourth Circuit. PARKER, Cir- Court of Before WADDILL 8, 1926.) June Judge. Judges, COCHRAN, District cuit No. 2477. Ridge Judge. PARKER, Patrick Circuit @=>354 court, federal motion 1. Courts —In (cid:127) doing during term, Ridge, partners judgment and Mike aside set open, may held aoted on thereafter. below, plaintiffs in ob- Ridge Bros., the court power set court has no While federal judgment for sum of tained default judgments term at which aside are after county defendant, $20,090.11 against complete rendered, has control over Va., county, the Octo- court of Marion W. during term, and, motion to set aside where during open term, and for fur- is made held Court ber term of United States District consideration, on after be acted ther defendant, at the Wheeling, W. Va. The expired. term has aside the made a motion to set term, same was ren- @=>354. judgment and verdict on which it 2. Courts judgment, denying mo- dered; and from an order motion*to set asido a fed- On a pre- governed practice by the eral courts are scribed prosecuted. of error is tion this writ by the state statutes. parties referred in accordance with will be respective positions in below. the court Judgment @=>145(1) to set aside —Motion “good judgment held trespass show cause” on This action was default 47). (Code Va. o. § sought case, assumpsit, plaintiffs in which against Motion to aside default set $50,000 alleged to recover for losses county Virginia, more court of West entered con- result of breach of sustained years commenced, after the action was $50,000 “good cause,” defendant, for the value tract held show within Code W. Va. served e. chairman of the office, cessor had no where summons was § machinery plaintiffs, alleged to have been court, who soon went out of appropriated by nse, defendant to its own county attorney, and his suc- as did plaintiffs due and for as balance county knowledge answer, performed under and relied on a road work contract. Sum- in rule of court for want of default requiring trial, notice before 8, and mons was issued October served Octo- especially long plain- in view the inaction of ber 1920. The declaration was filed Jan- tiff. uary 5, 1921. Thereafter no action whatever @=>222 Declaration, showing 4. Counties — 21,1924, cause was taken in the until October presentation against and disallowance of claim years later, when, upon and months county, required statute, state held in- day calling of the docket the first 41). (Code sufficient W. Va. o. regular Wheeling, term the defendant was Declaration in action on contract *9 county Virginia court does not of West state open court, and ealled in the ease was set for cause action will sustain a date, trial November 10th. On that Novem- prior by default, allege pres- where it does not trial, ber the ease was ealled for county claim entation court and its disallowance, 39, and, ap- ealled and required by the"defendant Code e. W. Ya. pearing, impaneled, and found for plaintiff's, damages $20,- and assessed their @=>374. 5. Courts days later, during 090.11. Three Limitations on suits im- counties posed by presentation requiring statute, state term, appeared same defendant and moved claims, will be enforced in federal courts. aside, and that the verdict be set for a new trial, thereupon an order entered al- In Error to the District Court of the Unit- days lowing in which to file for the States Northern District of West support grounds its motion. These

Virginia, Wheeling; William E. Baker, duly affidavit, grounds were set forth Jndge. allowed, was filed within the time Ridge whereupon took the under Action Patrick the court matter and another, partners doing advisement, 28, 1925, signed and on Ridge as the Bros. Company, against County denying the motion. the order Court of Mar-