and I am not impressed with his claim that he could obtain and do no work. I see no reason to doubt, however, that he had a serious injury, which confined him to the house for a year and three months, made several operations upon his leg necessary, and resulted in a permanent impairment of the limb, which is likely to prevent him from doing heavy work in the future. He is 45 years old. If his loss, at a rate of wages paid to a longshoreman during the one year and three monthhs prior to his securing work, and the succeeding period ending at the date of the hearing before the commission on May 2, 1919, be taken at the rate of $22 a week, the period would cover approximately 107 weeks, aggregating $2,354, from which should be subtracted the amount which he earned during the 10 weeks he was employed, leaving as his damages up to that date the sum of $2,194. Upon the assumption that he might, from the date of the hear ing, obtain wages at a loss of only $6 a week, and that his expectancy of life was then 10 years, his damages would be the present worth of $3,120. The present worth of this sum of $3,120 would approximate $2,000. The actual damages, without any allowance for damages as compensation for pain and suffering, would therefore amount to about $4,200. This calculation is upon the assumption that, if the accident had not happened, the claimant could have got no higher wages during the period succeeding April 12, 1917, than he earned before; whereas, as a matter of fact, it is well known that wages for manual labor have enormously increased. It also assumes that since May 2, 1919, the impairment of the claimant's leg represented a loss in earning capacity of only $6 per week, a figure which I am inclined to think is extremely low. Indeed, what proof there is would indicate that at the time of the hearing the claimant was not in condition to work in any remunerative way. Under all the circumstances, I think the allowance of the commissioner of $5,778 to cover estimated past and future loss of earnings, bodily impairment, and pain and suffering, is reasonable, and should be confirmed. THE NO. 223. Petition of CENTRAL R. CO. OF NEW JERSEY. (Circuit Court of Appeals, Second Circuit. December 15, 1920.) No. 81. Appeal from the District Court of the United States for the Southern District of New York. In the matter of the petition of the Central Railroad Company of New Jersey, owner of the lighter No. 223, for limitation of liability. From an award of damages to John Spillan, claimant, petitioner appeals. Affirmed. For opinion below, see 271 Fed. 531. De Forest Bros., of New York City (J. T. Kilbreth, of New York City, of counsel), for appellant. J. Arthur Hilton, of New York City, for appellee. Before WARD, ROGERS, and MANTON, Circuit Judges. PER CURIAM. Decree affirmed. (271 F.) Ex parte CLARK. (District Court, E. D. New York. March 14, 1921.) 1. Army and navy 44 (1)-Deserter of marine regiment detached for military service is triable by naval court-martial. Under Act Aug. 29, 1916, providing that a marine detached for military service may be tried by a naval court-martial after such detachment ceases, a marine who deserted from a regiment with the American military forces in Germany, and was apprehended and delivered to the commandant of a navy yard, may be tried for the desertion by a naval court-martial. 2. Army and navy ~44 (2)-Deserting marine may be tried after expiration of enlistment. Under Articles of War, art. 39 (Comp. St. § 2308a), providing that any period during which, by reason of some manifest impediment, the accused is not amenable to military justice, shall be excluded in computing the period of limitation, a marine who deserted from his regiment while it was in Germany, and was not apprehended until after the time of his enlistment would have expired, can be tried for his desertion; his concealment being a manifest impediment within the statute. Application by Jennie H. Clark for writ of habeas corpus to procure the release from custody of Lewis B. Clark, Jr. Writ dismissed. Emery C. Weller, of New York City, for relator. Leroy W. Ross, U. S. Atty., and Henry J. Walsh, Asst. U. S. Atty., both of Brooklyn, N. Y., for respondent. GARVIN, District Judge. On June 16, 1919, while attached to the Sixth Regiment of Marines with the American forces in Germany the relator deserted. He had enlisted with the United States Marine Corps on October 13, 1916, for a term of four years. Subsequent to his desertion, and shortly after his term of enlistment would have expired, the French authorities surrendered him to the American Army at Paris. He was then delivered by the military authorities to the custody of the commandant of the United States Navy Yard at New York, N. Y., and a naval court-martial was convened to try him for his act of desertion. [1] A writ of habeas corpus was obtained, and the claim is advanced in his behalf that the act of desertion with which he is charged is triable by a military court-martial, and not by the naval authorities. This question appears to be settled by Act Cong. Aug. 29, 1916 (39 Stat. 651), whereby it is provided that "An officer or soldier of the Marine Corps, when so detached, may be tried by military court-martial for an offense committed against the laws for the government of the naval service prior to his detachment, and for an offense committed against these articles [Articles of War] he may be tried by a naval court-martial after such detachment ceases." Comp. St. § 2308a, art. 2. The relator was subject to the Articles of War as the result of his detachment. His desertion from the army was a violation of article 58 of the Articles of War, which provides that an officer or soldier who is For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes guilty thereof may be tried by a court-martial. A member of the Marine Corps may be tried by a naval court-martial (39 Stat. 651, supra), after his detachment ceases, for an offense committed against the Articles of War during the period of his detachment. In this case the relator is now subject to the naval authorities, and therefore he may be tried by a naval court-martial. [2] There is no merit in the contention that the naval authorities have no jurisdiction over the relator, because his term of enlistment had expired before proceedings against him had been begun. The Articles of War provide (article 39): As to time: "Except for desertion committed in time of war, or for mutiny or murder, no person subject to military law'shall be liable to be tried or punished by a court-martial for any crime or offense committed more than two years before the arraignment of such person: Provided, that for desertion in time of peace or for any crime or offense punishable under articles ninetythree and ninety-four of this Code the period of limitations upon trial and punishment by court-martial shall be three years: Provided further, that the period of any absence of the accused from the jurisdiction of the United States, and also any period during which by reason of some manifest impediment the accused shall not have been amenable to military justice, shall be excluded in computing the aforesaid periods of limitation." It is apparent that as relator had deserted and could not be found, during the period of his desertion there was such a "manifest impediment" in the way of bringing him to justice as would justify excluding the period of his desertion from any computation of the time within which a prosecution must be begun. I have carefully considered the decision of the Judge Advocate General in the Matter of George M. Runyon, dated December 29, 1920, and if the effect thereof is that a man may desert, remain in hiding until the time of his enlistment expires, and then escape all responsibility, I cannot agree with such a conclusion. The effect thereof upon the morale of army and navy alike would be disastrous. While there is no obligation to serve after the period of enlistment, it does not follow that conduct during that period may go unpunished for the reason assigned. If that were the law, it might be well urged that a court-martial has no power to imprison after the expiration of the enlistment. The writ is dismissed, and the relator remanded to the custody of the respondent. UNITED STATES v. MURRAY et al. (District Court, E. D. New York. January 17, 1921.) Criminal law 242 (11)-Clerk directed to file record of commissioner to enable defendants to seek review of order of removal. Defendants, who have been ordered removed to another district for trial on an indictment there pending against them, and who are seeking a review of that order, are entitled to have the record of the proceedings before the commissioner, on which the order of removal was entered, filed by the clerk of the District Court, so that he can properly certify it, if the court's opinion that the order is not reviewable is decided to be erroneous by the Circuit Court of Appeals. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (271 F.) John Murray and others were indicted in the United States District Court for the Eastern District of North Carolina for conspiring to commit an offense against the government. On motion by defendants, after the order for their removal to the district in which they were indicted had been entered, to compel the clerk of the court, to file the record of the proceedings before the commissioner, so as to enable the defendants to procure a review of the order of removal. rected to file the record. John T. Eno, Asst. U. S. Atty., of Brooklyn, N. Y. Clerk di GARVIN, District Judge. The defendants were indicted by a grand jury in the United States District Court for the Eastern District of North Carolina for conspiring to commit an offense against the government, to wit, breaking into a post office and stealing and carrying away large quantities of government property. They were later held under a commissioner's warrant in this district, and a hearing was had before the commissioner for the purpose of determining whether they should be removed to the Eastern District of North Carolina to be tried under the indictment. The commissioner held them for removal as a result of the hearing, and an application was made to me for an order of removal. Upon this application a hearing was held before me, further testimony was taken by the commissioner at my direction, the matter then argued at length, and after a careful examination of the record and of the authorities submitted I concluded that the application was proper and made an order of removal accordingly. Upon the argument, the defendants urgently requested that they be given an opportunity to review my action in the event that an order of removal should be made. Although I had grave doubt whether such an order could be reviewed, I concluded to and did allow an appeal from the order at defendants' request, so that the matter might be determined by the Circuit Court of Appeals. At the same time I granted a stay of execution of the order, so that by no possibility could the defendants be prejudiced, if the Circuit Court of Appeals should determine that the order was reviewable and that it should not have been made. The stay, conditioned upon prompt action by the defendants to seek a review of the order, was granted September 19, 1920. Thereafter the defendants printed the record of the proceedings before the commissioner, but could not bring on for argument the application to review the order, because they could not obtain a certification of the record from the clerk of this court, who refused to receive and file the same, claiming that there was no authority for filing such a record in the clerk's office. Finally the United States attorney moved before me to have the stay of execution of the order of removal vacated. When this motion came on for argument, the defendants protested, and urged their earnest desire to present the removal order to the Circuit Court of Appeals for review. I directed them to take steps without delay to obtain a judicial determination of the defendants' rights and adjourned the motion of the government. The defendants have now moved to compel the clerk of this court to file the record, and have transmitted the said record to me. I am still of the opinion that the order of removal is not appealable, but, if I am wrong, the defendants should have an opportunity to review my action. There is precedent for reviewing an act of an officer of this court performed while he is sitting as a magistrate (Veeder v. United States, 252 Fed. 414, 164 C. C. A. 338), and this can only be accomplished, I take it, by first filing the record with the clerk of the court, who can then properly certify the same. No formal orders need be entered. I have made appropriate indorsements on the respective motion papers, directing the clerk to file the record, and denying the motion to vacate the stay, with leave to renew, unless the defendants proceed with reasonable expedition. NORRIS et al. v. NO-LEAK-O PISTON RING CO. (District Court, D. Maryland. March 28, 1921.) Copyrights 53-Infringement by copying advertising circular. The copying by defendant from a trade paper, with its consent, and publishing in an advertising pamphlet, of a list giving sizes and description of piston rings used in different motorcars, which list was copied by the paper without consent from a copyrighted pamphlet prepared for advertising purposes by complainant, a business competitor of defendant, held an infringement of the copyright, though defendant did not know that the list it used was copied from complainants'. In Equity. Suit by William K. Norris and others, trustees of the McQuay Norris Manufacturing Company, against No-Leak-O Piston Ring Company. Decree for plaintiffs. Bartlett, Poe & Claggett, of Baltimore, Md., and Judson, Green & Henry, of St. Louis, Mo., for plaintiffs. John E. Cross, of Baltimore, Md., for defendant. ROSE, District Judge. The plaintiff and the defendant each make and sell piston rings. The plaintiff says the defendant has infringed its copyright on an advertising pamphlet, which gives the sizes and other details of piston rings found in each model of every motor maker whose machines are used in this country. Since 1913 the plaintiff has annually gone to considerable trouble and expense to collect and compile the needed information, and has copyrighted its successive yearly issues. It is the 1919 edition which the defendant is said to have infringed. The plaintiff spent on it somewhere between $6,000 and $7,000. It is extensively distributed among automobile repair shops, garages, dealers in cars, and to some extent among the owners of them. It is a good advertisement, because any one called on to repair an automobile has need of the information it contains. The plaintiff has always been vigilant and successful in protecting its rights against infringers. It has brought several suits, For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |