Court are the equivalent of statutes and have the binding force of such. We are therefore to read into the law the provisions of rule 26. In further consequence a claimant cannot intervene, except, upon condition that he stipulates to pay the costs and expenses. When, therefore, he does intervene, he makes this stipulation, and the fact that it is given without sureties, or is not in writing, does not affect the legal result, which is that he has stipulated to pay the costs and ex

penses.

Aside from the question before suggested of whether a liability which was not in the Food and Drugs Act could be thus inserted into it, the conclusion reached may be characterized as a non sequitur. It is true that the claimant cannot intervene without entering into the stipulation. It is not true, or at least not clear, that if he does intervene he enters into the stipulation. The truth would seem to be that if he does not enter into the stipulation he has not intervened, and if he has not intervened there can be no pretense that he has agreed to pay costs and expenses. The question suggested of what is the real situation may be answered by the test of applying a remedy for the omission. If a petition to intervene be filed without a compliance with rule 26, and a motion were made to strike the petition from the record, or if the claimant should ask leave to withdraw it, such a motion must prevail, and such leave would unquestionably be granted. The latter is in effect just what this claimant has done. He has abandoned his claim and withdrawn it. Had he done this promptly, the question now before us would doubtless not have arisen, and it may be said that leave to withdraw will be granted only on terms. In this view the question would remain. The test would be the same if the motion were to dismiss, and if this prevailed the whole basis for the argument is taken away. We prefer, however, to base the conclusion reached upon the more substantial foundation of the provisions of the Food and Drugs Act itself. As before stated, it has in view the possibility that the thing seized may be sold, and it provides that in such an event the costs and expenses shall be taken out of the proceeds of sale. It also has in view the possibility that the article seized may be decreed to be destroyed, in which event no provision is made for the liability of any one for the costs and expenses. The decree here was to destroy.

The motion for the decree is denied.

THE SANTA BARBARA,

(District Court, E. D. New York. December 26, 1918.)

1. SEAMEN 29(5)—INJURY EVIDENCE.

On libel by an ordinary seaman, who was ordered to rig a boatswain's chair to paint a smokestack, and who, being unable to pass a rope through a pulley sheave, became exhausted while climbing down a guy rope and fell, evidence held to show that the owners of the vessel failed to supply and maintain in good working order the pulley and chain which the seaman was required to use.

2. SEAMEN 29(1)—INJURIES TO SEAMAN-DUTIES REQUIRED.

It is improper to require an ordinary seaman, who was a minor, to climb a guy rope hand over hand, and hold fast thereto, while working a rope through a block.

3. SEAMEN 11-INJURIES TO SEAMAN-MAINTENANCE AND CURE. Where a seaman, who was injured, was given the best medical attention available, and the advice of physicians was followed, and it did not appear that the ship failed to pay his wages, he was not warranted in leaving the hospital in which he was placed without good reason, and cannot, having removed to his home, recover for maintenance and cure. 4. SEAMEN 29(1)—INJURIES TO SEAMAN-LIABILITY FOR INJURIES.

Where an ordinary seaman was directed to do the work of an able seaman in climbing a guy rope and passing a rope through a pulley, and the pulley and chain were not in good working order, held, that the owner was liable for an injury received by such seaman when, becoming exhansted, he dropped to the deck.

5. DAMAGES 132(6)—PERSONAL INJURY-MEASURE.

An award of $4,000 in favor of a minor, who shipped as an ordinary seaman and suffered a fractured knee, held sufficient compensation for his pain, suffering, and injury; it appearing that he was by no means disabled, although injury was to some extent permanent.

In Admiralty. Libel by Harris Applebaum, as guardian ad litem of Herman Applebaum, against the steamer Santa Barbara, her engines, etc. Decree for libelant for part only of the recovery sought.

Foley & Martin and J. A. Martin, all of New York City, for libelant. James A. Hatch and Morton L. Fearey, both of New York City, for claimant.

GARVIN, District Judge. The libelant was injured on May 10, 1917, by a fall on the steamer Santa Barbara, while she was at Iquique, Chile. He claims that he was ordered by the boatswain to paint the smokestack of the vessel, which necessitated his climbing the guy leading from the smokestack on the upper deck to pass a rope through a sheave fastened at or near the top of the smokestack, and that in obedience to this order he climbed the guy and endeavored to pass the rope through the sheave, but that the pulley block was old, worn, and rusty, and that he was unable to work the rope through; that he finally became exhausted and started to descend the guy, about half way down falling to the deck and fracturing his knee.

He further claims that he did not receive proper medical attention and care, and that he is entitled to recover from the vessel, or its ownFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

ers, not only the amount expended for hospital care, medical care, and maintenance from July 19, 1917, and which still continues, but also an additional amount by way of damage in at least the sum of $25,000-all this by reason of the negligence of those who had the boat in charge, her owners, master, officers, and duly authorized agents. Various acts of negligence are specified, among others, knowingly allowing the block and pulley to become rusty, old, and unfit for use, and failing to have a chain run through the pulley block, by which a rope could have been drawn up, to which might be 'fastened a bo'sun's chain, which could be used by whoever should paint the stack.

The answer denies any negligence on the part of any one connected with the Santa Barbara, and sets forth that the boat was fully equipped with proper appliances and was in all respects seaworthy, and that any accident which occurred was caused by his negligence, or that of his fellow servants, or was due to an obvious risk, which he assumed, or in any event was not caused by negligence on the part of the Santa Barbara, its owners, officers, or crew, or any one for whom they may have been responsible.

It is undisputed that the libelant, an ordinary, not an able, seaman, was ordered by the boatswain to rig a boatswain's chair to paint the smokestack. Work of this character is done by able seamen. The ship itself had been about 18 months in commission, and there is nothing to indicate unseaworthiness, unless the evidence establishes that there was a failure to have the pulley block in working order and properly rigged with a chain or gaunt line.

[1, 2] Considerable testimony was offered by the libelant tending to show that all ships of this character are equipped with chains running through the pulley blocks, and the court is of the opinion that they should have been in place here.

The fact that there were no chains made the accident possible. There was conflicting evidence as to whether the pulley was in order, but the court considers the testimony of the libelant on this point more reliable, because it is natural that a pulley, at the top of the smokestack on a ship which is an oil burner, should become covered and clogged with oil soot. A pulley was received in evidence, but that it is the pulley involved and in the same condition of cleanliness as at the time of the accident cannot be credited. Further, it has been established that the libelant objected to going up the guy rope in order to rig the chain. As he was only an ordinary seaman, he should not have been required to do work of this character. He was ordered to climb this wire guy rope hand over hand, and was required to hold fast thereto, while working a rope through the block. This placed him in a dangerous position, with great likelihood that he would fall, and serious injury would follow.

[3-5] No proof was offered that the ship failed to pay libelant's wages, and there is nothing to justify a recovery for maintenance and cure. He was given the best medical attention available, the advice of the physicians was followed, and he was not warranted in arbitrarily. leaving the Marine Hospital, without some good reason, and having treatment at home.

The court is of the opinion that, although libelant cannot recover for maintenance and care, he is entitled to a substantial sum for the injury, on the ground that the owners failed to supply and maintain in good working order the pulley and chain in question. The Osceola, 189 U. S. 158, 23 Sup. Ct. 483, 47 L. Ed. 760; Foster v. Bucknall S. S. Lines, 206 Fed. 415, 124 C. C. A. 297; The Noddleburn (D. C.) 28 Fed. 855; The Ethelred (D. C.) 96 Fed. 446.

The facts in the case of Cook v. Smith, 187 Fed. 538, 109 C. C. A. 304 (while not parallel to those in the case at bar), indicate that where a young boy is injured, as was the libelant here, he is entitled to compensatory damages. He was not guilty of contributory negligence. Cook v. Smith, supra. The libelant appeared in court, and, although his injury is to some extent undoubtedly permanent, he is by no means disabled, and an award, for his pain, suffering, and injury sustained, of $4,000, is sufficient.

Decree accordingly.

UNITED STATES v. ROSENWASSER BROS., Inc., et al.

(District Court, E. D. New York. January 6, 1919.)

1. INDICTMENT AND INFORMATION 121(1)-MOTION For Bill of PARTICULARS -DISCRETION OF COURT.

A motion by defendant in a criminal case for a bill of particulars is addressed to the sound discretion of the court.

2. CONSPIRACY ~43(6)—CRIMINAL CONSPIRACY-INDICTMENT.

In an indictment for conspiracy to commit an offense, the offense which is intended to be committed as a result of the conspiracy need not be described with the particularity required in an indictment for the substantive offense.

3. INDICTMENT AND INFORMATION 121(2)--BILL OF PARTICULARS.

A bill of particulars should only be required where the charges of an indictment are so general that they do not advise defendant of the specific acts of which he is accused.

Criminal prosecution by the United States against Rosenwasser Bros., Incorporated, and others. Motions by defendants for bill of particulars. Denied.

See, also, 254 Fed. 171.

Melville J. France, U. S. Atty., of Brooklyn, N. Y.

Fitzgerald, Stapleton & Mahon, of New York City, for defendants.

GARVIN, District Judge. This is a motion for a bill of particulars, made by defendants Rosenwasser Bros., Inc., Morris Rosenwasser, Leo Rosenwasser, Abe Weiss, Jacob Rosenberg, Louis Levy, Harry Gersonovitz, Isaac Merlis, and Abraham Lampert. These, with various other defendants, have been indicted upon a charge of conspiring to defraud the United States of America. The indictment is somewhat voluminous, but the charge is nothing more than that some of the defendants (who had made contracts to supply various articles to the United States), some of their employés, and certain representatives of

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

the government (inspectors and others), conspired to have defective articles passed by these inspectors as in conformity with the contracts; the result being that the government was defrauded.

[1] This motion is addressed to the sound discretion of the court, and the "motion will be granted or refused, as the court, in the exercise of a sound legal discretion, may find necessary to the ends of justice." Rosen v. United States, 161 U. S. 29, 40, 16 Sup. Ct. 434, 480, 40 L. Ed. 606, approved in Dunlop v. United States, 165 U. S. 486, 491, 17 Sup. Ct. 375, 41 L. Ed. 799.

[2] At the outset it is to be noted that the defendants are not charged with having defrauded the government, but with having conspired to defraud.

"In such case, the authorities all show that the offense which is intended to be committed as a result of the conspiracy need not be described with the particularity required in an indictment in which such matter was charged as a substantivé crime." United States v. United States Brewers' Ass'n (D. C.) 239 Fed. 163, 170.

While the foregoing observations were made in deciding a demurrer to the indictment, they emphasize that the government is not held to the same strict requirements here as in certain other prosecutions. While the charge is conspiracy, nevertheless, if the government is required to furnish a bill of particulars, it will be strictly limited in proof to the matters therein contained. Kettenbach v. United States, 202 Fed. 377, 120 C. C. A: 505.

[3] A bill should only be allowed "where the charges of an indictment are so general that they do not advise the defendant of the specific acts of which he is accused, and the court feels that the bill should be furnished him, so that he may properly prepare his defense." United States v. Gouled (D. C.) 253 Fed. 239, citing Kettenbach v. United States, supra.

The charges here are lengthy, and 28 overt acts altogether are set forth; but a careful reading of the indictment indicates that each one. of the defendants is apprised of the nature of the charge and each is able to fully meet the contention that he participated therein. It may well be that a bill of particulars might enable one or more defendants to secure an acquittal at the expense of a conviction of the others, but such is not intended to be the object of a bill.

The defendants seek to be advised of the specific contracts involved. Defendants Morris Rosenwasser and Rosenwasser Bros., Incorporated, are aware of the contracts made by them with the government; but as a matter of fact what the contracts are in terms or in detail is of no consequence, if there was no conspiracy. The charge is that the defendants entered into a combination to defraud, and the method employed is set forth at great length in the recital of the overt acts involved. The defendants seek to have the government indicate the time and place when they conspired to defraud. The indictment gives the place as the borough of Queens, and the time as during the period between July 15, 1916, and September 19, 1918. This statement, especially when taken in connection with the various dates specified in the recitals of overt acts, is sufficient. The particulars demanded by