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The lands in Kentucky bid off by the petitioner have never been appraised as required by law. The advertisement, quoted above, was wholly inadequate to apprise the public of what was being sold. The inadequacy of the advertisement and the failure to appraise might not present such serious difficulties, if the property sold had been known to the community where the sale was made. In this case lands lying in Kentucky are exposed to sale at Greenville, S. C. (James L. Killian, the Perry estate, and the bankrupt estate of W. 7. Irvine each owned a one-third interest in fee in a tract of 196 acres of land in Edmundson county, Ky. They owned in the same proportion the mineral rights in a tract of 225 acres of land.) There is nothing in the advertisement to indicate the character of the land, or what kind of minerals the land is underlaid with. It was stated to the court in the argument that the minerals are asphalt and coal. The value of coal lands may depend largely upon transportation. There is nothing in the advertisement to indicate how far the land is from a railroad or from a navigable stream, nor is there any statement of any geologist or mining engineer as to the quantity and quality of the asphalt and coal underlying said land. Nor are we apprised by the advertisement whether the surface of the land was desirable for farming purposes or for timber purposes.

The trustees, before selling this land, should secure the names of three reliable and responsible persons in the vicinity in which it lies to appraise it, and in their next advertisement they should state where the land lies, whether it is desirable for farming purposes or timber purposes, what kinds of minerals underlie it, and the supposed quality and quantity, together with the accessibility of the land to railroad or water transportation, so that the public may be apprised by the advertisement and by a previous appraisement of what is offered for sale, and the court would then know what had been sold, and what proportion the purchase price bore to what appraisers who knew the property had sworn that it was worth. For the reasons herein stated, the court cannot confirm the sale made on the 14th day of January, 1918.

Wherefore it is ordered that the rule be discharged. It is further ordered that the heirs at law or the trustees may apply at the foot of this order for any further orders that may be necessary and proper in the administration of this estate.

THE ALLAN WILDE (two cases).

(District Court, E. D. New York. December 30, 1918.) 1. WHARVES 17—AMOUNT OF WHARFAGE—CONTRACT.

Where claimant authorized one to arrange for wharfage for a vessel, wharfage to be at the regular rates, held that, if claimant intended the agent to fix the charge for wharfage at the statutory rate, which was much lower than the usual rate, it should have so indicated, either by

reference thereto or by using the expression "rate provided by law." 2. SHIPPING Ow74CONTRACT OF AGENT-REPUDIATION.

Where a vessel accepted the benefit of an arrangement by the claimant's agent for wharfage, claimant may not repudiate the arrangement

as unauthorized. 3. WHARVES 19AMOUNT-CONTRACTS-VALIDITY.

Where wharfage was contracted for at rates in excess of those prescribed by Greater New York Charter, 88 859, 863, it will be presumed that claimant, who contracted for wharf facilities at the increased rate, waived the statute, and recovery on the contracts cannot be denied on the ground that they were contrary to law.

In Admiralty. Libels by the Caribbean Shipping Company, Limited, and by the Central Transportation Company, against the schooner Allan Wilde, claimed by the Commercial Shipping Corporation. Decree for libelant in each case.

Stuart McNamara, of New York City, for libelant Caribbean Shipping Co.

Joseph P. Nolan, of New York City, for libelant Central Transp. Co.

Macklin, Brown & Purdy, of New York City (Wm. F. Purdy, of New York City, of counsel), for claimant.

GARVIN, District Judge. Two libels for wharfage have been filed, and the cases tried together by consent. The contract in each case was made with the libelants by one Novelly, and a question at once arises as to whether claimant is bound by his acts as its agent.

[1, 2] The court is of the opinion that the evidence is sufficient to establish that the claimant of the Allan Wilde authorized Novelly to arrange dockage for her so that her cargo might be loaded, the wharfage to be at the regular rates. The usual rates were those at which Novelly closed the contract. If the claimant had intended Novelly to fix the charge for wharfage on the very much lower basis provided for by chapter 466 of the Laws of 1901, to which reference will be presently made, it should have so indicated, either by reference thereto or by using the expression "rate provided by law, or its equivalent. Furthermore, the ship accepted the benefit of the arrangement made, and the claimant may not receive the benefit of this agreement, and at the same time repudiate the obligations by it raised.

13] The claimant insists, further, that these contracts for wharfage, which were at $75 and $100 per day, if in fact made by it, are unenforceable, being contrary to law. Chapter 466 of the Laws of 1901 provides:

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“Sec. 859. It shall be lawful to charge and receive, within the city of New York, wharfage and dockage at the following rates, namely: From every vessel that uses or makes fast to any pier, wharf, or bulkhead, within said city, or makes fast to any vessel lying at such pier, wharf, or bulkhead, or to any other vessel lying outside of such vessel, for every day or part of a day except as hereinafter provided, as follows:

For every vessel over 200 tons burden, two cents per ton for each of the first two hundred tons burden, and one-half of one cent per ton for every additional ton.

And again: "Sec. 863.

Any person owning or having charge of any pier, wharf, bulkhead, or slip as aforesaid, who shall receive for wharfage any rates in excess of those now authorized by law, shall forfeit to the party aggrieved treble the amount so charged as damages, to be sued for and recovered by the party aggrieved."

The rate under the statute would be only $4.97 per day.

The court has not been referred to, nor has it found, any decided case which is directly in point; but, unless constrained by authority, it is not disposed to allow a boat under these circumstances to avail itself of wharfage which is worth at least $75 per day for $4.97 per day. The court holds rather that the claimant by its express contracts waived the statute. As Judge Thomas remarks in The Antonio Zambrana (C. C.) 88 Fed. 546:

“The statute is supreme, and confers a right; and unless the person upon whom the right is conferred waives it, by contract or otherwise, a court is technically barred from declaring that the exercise of the right is unlawful."

Decree for libelant in each case.

UNITED STATES v. PORRIA et al.
(District Court, W. D. Washington, N. D. November 14, 1918.)

No. 4138.
CRIMINAL LAW 200(1)-FORMER JEOPARDY-SAME OFFENSE.

Conviction in state court on indictment charging receiving and withholding stolen property is, under Comp. St. § 8604 a bar to prosecution on count charging taking in possession such property, a foreign shipment, the same having been stolen, the same character and degree of proof being necessary, but not so as to count charging larceny of the

property while moving in interstate commerce. John Porria and others were indicted for larceny of property moving in interstate commerce, and for taking in possession, the same having been stolen. The named defendant pleaded former conviction. Sustained as to count 2; denied as to count 1.

Robert C. Saunders, U. S. Dist. Atty., and Ben L. Moore, Asst. U. S. Dist. Atty., both of Seattle, Wash., for the United States.

John F. Dore, of Seattle, Wash., for defendant Porria.

NETERER, District Judge. The defendant is charged in count 1 with larceny of 21 bars of copper wire, of the value of $1,139.25,

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while moving in interstate commerce. In count 2 he is charged with taking in his possession 21 bars of copper wire, a foreign shipment, the same having been stolen. The defendant pleaded in bar to each count a judgment of conviction in the Washington state court, and in support filed a certified copy of the judgment roll. The state court indictment charged the defendant with receiving and aiding in concealing and withholding stolen property, 21 bars of copper wire, of the value of $1,000.

The District Attorney challenges the sufficiency of the plea. The single question is whether the defendant has been twice in jeopardy for the same offense. Section 8604, U. S. Comp. Stat. 1916 (U. S. Comp. Stat. 1918), provides that,

"A judgment of conviction or acquittal on the merits under the laws of any state shall be a bar to any prosecution.

As stated, count 1 charges larceny of property moving in interstate commerce, and count 2 with receiving property stolen while moving in interstate commerce. The conviction in the state court was upon the charge of "did

receive and aid in concealing and withholding

the same property. The protection intended is against second jeopardy for the same offense. Do the charges in the indictment require different or additional proof to that required in the state court? Is this charge the same in law and in fact? Consideration of the indictment and consideration of the charge and judgment of conviction in the state court bring the inevitable conclusion that the same character and degree of proof will be necessary to sustain count 2 of the indictment as was necessary to sustain the conviction in the state court. The same may not be said as to count 1, where a felonious taking, stealing, and carrying away must be established. Every issue here presented was determined by the Supreme Court in Gavieres v. United States, 220 U.S. 338, 31 Sup. Ct. 421, 55 L. Ed. 489.

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The plea in bar is sustained as to count 2, and denied as to count 1.

UNITED STATES V. ONE CADILLAC EIGHT AUTOMOBILE.
(District Court, M. D. Tennessee. December 24, 1918.)

No. 1234. 1. INTOXICATING LIQUORS O 247—TRANSPORTATION OF INTOXICANTS-FORFEITURE OF VEHICLE USED-GROUNDS.

An automobile used to transport liquor into a state the laws of which prohibit its sale, in violation of Act March 3, 1917, § 5 (Comp. St. 1918, $8 8739a, 10387a-10387c), is not subject to seizure and forfeiture by virtue of Act March 2, 1917, § 1, which is a proviso contained in the Indian Appropriation Act, and applies only to introduction of liquor into Indian country "or where the introduction is prohibited by treaty or federal

statute" relating to Indian affairs. 2. FORFEITURES 2–CONSTRUCTION OF STATUTES.

A statute imposing a forfeiture should be strictly construed and in a manner as favorable to the person whose property is to be seized as is consistent with the fair principles of interpretation.

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3. STATUTES 228CONSTRUCTION-SCOPE OF PROVISO.

The effect of a proviso is presumptively limited to the particular legislation to which it is appended, and it should not be construed as having a more general application unless such legislative intention is clearly and positively expressed in language admitting of no other reasonable interpretation. Forfeiture. Libel by United States for forfeiture of Cadillac Eight Automobile, alleged to have been used in transporting intoxicating liquor from Kentucky into Tennessee. Answer by claimant, W. B. Winter, incorporating defense in the nature of demurrer to the libel. Decree for claimant.

Lee Douglas, U. S. Atty., of Nashville, Tenn.
Frank P. Bond, of Nashville, Tenn., for defendant.

SANFORD, District Judge. [1] The answer of the claimant in effect incorporates a demurrer to the libel. This has been argued by counsel, with the understanding that technical questions of pleading are waived, and that the question submitted for determination is whether, on the face of the libel, a case is made out for the forfeiture of the automobile in question.

The libel alleges that the automobile was used in transporting intoxicating liquor from Kentucky into Tennessee in violation of section 5 of the Act of March 3, 1917, c. 162, 39 Stat. 1058, 1069 (Comp. St. 1918, $$ 8739a, 10387a-10387c) commonly known as the Reed Amendment.

The specific punishment provided for violation of this Act is fine or imprisonment, or both. Admittedly it does not authorize the forfeiturs of the automobile unless by virtue of a proviso contained in the earlier Act of March 2, 1917, c. 146, 39 Stat. 969, 970, making an appropriation for the expenses of the Bureau of Indian Affairs, etc.

This proviso appears in a separate paragraph, reading as follows:

“For the suppression of the traffic in intoxicating liquors among Indians, $150,000: Provided, that automobiles or any other vehicles or conveyances used in introducing, or attempting to introduce, intoxicants into the Indian country, or where the introduction is prohibited by treaty or Federal statute, whether used by the owner thereof or other person, shall be subject to the seizure, libel, and forfeiture provided in section twenty-one hundred and forty of the Revised Statutes of the United States.”

Section 2139 of the Revised Statutes makes it a criminal offense to introduce or attempt to introduce “any spirituous liquor or wine into the Indian Country,” but that it shall be a sufficient defense that the acts charged were done by order or under the authority of the War Department.

Section 2140 of the Revised Statutes (Comp. St. 1918, § 4141), which is referred to in the Act of March 2, 1917, is contained in title 28, “Indians," and chapter 4, "Government of Indian Country," and reads as follows:

“If any superintendent of Indian affairs, Indian agent, or subagent, or commanding officer of a military post, has reason to suspect or is informed

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