Henry M. Willis, of Los Angeles, Cal., for appellant. Before GILBERT, MORROW, and RUDKIN, Circuit Judges. RUDKIN, Circuit Judge (after stating the facts as above). It was held by the Supreme Court in the recent case of McLaren v. Fleischer, 256 U. S. 477, 41 Sup. Ct. 577, 65 L. Ed. 1052, that where land is withdrawn from public entry under the Reclamation Act, a successful contestant of a homestead entry has 30 days after the land is restored to public entry within which to exercise his preference right. Had the contestant in this case survived, that decision would be decisive of every question presented by this appeal, for the facts in the two cases. would then be identical. It only remains to consider whether the appellees, as heirs, have succeeded to all the rights of the contestant. The original act of May 14, 1880 (21 Stat. 140), creating the preference right, was silent as to the rights of heirs, in case the contestant died before the final termination of the contest; but this omission was cured by the act of July 26, 1892 (27 Stat. 270 [Comp. St. § 4537]), which 'provides as follows: "That should any such person who has initiated a contest die before the final termination of the same, said contest shall not abate by reason thereof, but his heirs who are citizens of the United States, may continue the prosecution under such rules and regulations as the Secretary of the Interior may prescribe, and said heirs shall be entitled to the same rights under this act that contestant would have been if his death had not occurred." The appellant contends that the contest in this case was finally terminated by the relinquishment of the Geiger entry, and that Congress has made no provision for succession and descent with reference to a mere application to enter. In discussing this question upon the rehearing in the present case the Secretary of the Interior said: "This statute was manifestly enacted in recognition of the rights acquired and acquirable by a contestant under his contest, and was designed to secure all such rights to the contestant's heirs. To restrict the term used, the final termination of the' contest, to the termination thereof as regards the contestee, only, would be contrary to the reason and purpose of the act. No interest of the contestee called for the enactment of such a law. The interest of the contestant, however, based upon a consideration, the payment of the costs of contest on the promise of a prospective right of entry, called for just such an enactment which should secure to such contestant and to his heirs that for which such consideration had been given by him, in part if not wholly, as in the present case; and good faith on the part of the United States with such contestant required such an enactment to apply to all cases where the contestant's death intervenes before the right of entry given him inchoately with his privilege of contest is merged into actual entry or otherwise extinguished in some of the ways indicated. It is within the reason and spirit of the statute so to construe it, and such construction is consonant to the terms necessary to effect the purpose and object of the statute. 'Where a provision admits of more than one construction, that one will be adopted which best serves to carry out the purposes of the act.' Bernier v. Bernier, 147 U. S. 242. The reason assigned for the holding in the case of Garvey v. Tuiska, supra, that Congress had made no provision for succession and descent with reference to a mere application to enter, does not therefore apply in the case of an application to enter filed under a contestant's preference right, but in (289 F.) such cases, by the act of July 26, 1892, supra, the contestant's heirs have the right to perfect such application filed by him and pending at his death and to make entry thereon." Wells v. Bodkin, 42 Land Dec. 340. This construction of the statute by the department charged with its administration is just and reasonable, and should be followed by the courts. The question whether the heir should be required or permitted to relinquish a homestead entry in his own right was one between him and the United States with which the appellant had no concern. It appearing, therefore, that the rights of the contestant were superior to the rights of the appellant, and that the appellees have succeeded to all such rights by operation of law, the decree of the court below must be affirmed; and it is so ordered. HARBAUGH v. DWYER. (Circuit Court of Appeals, Ninth Circuit. May 16, 1923. Rehearing Denied June 18, 1923.) No. 3946. * 1. Injunction 186 (3) -Measure of damages for wrongful injunction, injury to party enjoined, not benefit to adverse party. The measure of damages arising from a wrongful injunction is the loss to the party enjoined, not the benefit accruing to his adversary, and where a party has been improperly enjoined from prosecuting his business, it is ordinarily immaterial whether the plaintiff was engaged in the same line of business, and if engaged in the same line of business, whether such business was conducted at a profit or a loss. 2. Patents 308-Patentee of gambling device wrongfully enjoined from use cannot recover damages. The owner of a patent for a ticket-dispensing machine, used concededly as a gambling device, is not entitled to damages for wrongful injunction in a patent infringement suit procured at the instance of the owner of a patent for a similar device similarly used, merely because the adverse party profited from the unlawful operation of such gambling device, while the injunction was in force; he not being entitled to recover profits which he might have realized in violation of law, and having no interest by contract or otherwise in the unlawful profits of his adversary. Appeal from the District Court of the United States for the District of Oregon; Robert S. Bean, Judge. Suit in equity by Joseph F. Dwyer against Paul Harbaugh for injunction to restrain infringement. Decree was for defendant, and reference was had to ascertain defendant's damages. Exceptions to the report of the master assessing damages were sustained, and decree denying damages entered, from which defendant appeals. Affirmed. This was a suit for infringement of letters patent for a ticket-dispensing machine used by the plaintiff for selling collar buttons and other merchandise. Upon the filing of the complaint, a preliminary injunction was granted, after notice, restraining the defendant from making, using or selling the infringing device during the pendency of the suit, upon furnishing a bond in the sum of $10,000 to secure the payment of any damages that might be awarded to the defendant, if on final hearing it should appear that the For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes defendant had not infringed the patent in suit. Upon final hearing the court held that there was no infringement and dismissed the complaint. A reference to the standing master followed to ascertain the damages, if any, sus-. tained by the defendant by reason of the preliminary injunction. After a hearing the master assessed the damages in the sum of $13,650, or at the rate of $1,500 per month from the date of the preliminary injunction to the date of its dissolution. The court sustained exceptions to the master's report, and denied the prayer for damages. From this order or decree the defendant has appealed. T. J. Geisler, of Portland, Or., for appellant. John W. Roberts and E. L. Skeel, both of Seattle, Wash. (Frank A. Steele, of Seattle, Wash., of counsel), for appellee. Before GILBERT and RUDKIN, Circuit Judges, and VAN FLEET, District Judge. RUDKIN, Circuit Judge (after stating the facts as above). It was conceded before the master, and is now conceded, that the machines. used by both parties to this suit were gambling devices (Dwyer v. Seattle, 116 Wash. 449, 199 Pac. 740), and it is further conceded that the owner or operator of a gambling device cannot recover damages by way of lost profits for interference with his unlawful enterprise. This rule is well settled. 17 C. J. 797; 13 Cyc. 59; 3 Sutherland on Damages, § 969; 1 Joyce on Damages, § 445; Raynor v. Valentin Blatz Brewing Co., 100 Wis. 414, 76 N. W. 343; Kauffman v. Babcock, 67 Tex. 241, 2 S. W. 878; Young v. Stevenson, 75 Ark. 181, 86 S. W. 1000. But the appellant contends that through the wrongful injunction the appellee has realized profits that otherwise would have accrued to him, and that the appellee should be required to account for these profits, notwithstanding the illegality of the enterprise in which both parties were engaged, inasmuch as the illegal transactions out of which the profits arose are at an end. Brooks v. Martin, 2 Wall. 70, 17 L. Ed. 732, and kindred cases are cited in support of this view. If the premise is correct, the conclusion might follow; but what interest has the appellant in the profits made or realized by the appellee? Each party was using a different gambling device, at least different in the sense that one did not infringe upon the other, and the appellant had no interest, contractual or otherwise, in either the business of the appellee or in the device employed by him. [1, 2] The measure of damages arising from a wrongful injunction is the loss to the party enjoined, not the benefit accruing to his adversary, and where a party has been improperly enjoined from prosecuting a business it is ordinarily immaterial whether the plaintiff was engaged in the same line of business or not, and if engaged in the same line of business, whether his business was conducted at a profit or at a loss. If the gambling devices here in question were in general use by others, it would scarcely be contended that the appellee could be required to account to the appellant for any part of the profits realized by him, and the mere fact that the devices were used by these two parties only does not change the measure of damages or the rules of law. It is to be regretted that the appellee has profited by an abuse of the processes of the court, but the appellant is in a measure responsible for (289 F.) this. Had he interposed the defense of illegality at the threshold of the case, doubtless the injunctive relief would have been withheld, for, in the absence of any such defense, the court on final hearing said: "There is another reason why I am inclined to think the court should decline to grant plaintiff relief. If plaintiff's device is not a lottery or gambling device, it borders closely thereon. It is the element of chance in its operation which gives it value, and hence I doubt whether a court of equity, on grounds of public policy, should assume to protect him in a monopoly thereof." Of the injunction, therefore, the appellant has little ground for complaint. But in any event he is not entitled to recover profits he might have realized in operating a gambling device in violation of law, nor is he entitled to share in the profits of another, in which he has no in⚫terest, and to which he has no lawful claim by contract or otherwise. The decree of the court below is affirmed. BARKER v. UNITED STATES. (Circuit Court of Appeals, Fourth Circuit. May 1, 1923.) No. 2021. 1. Intoxicating liquors 236 (5)-Presumption from possession held sufficient to establish nuisance. Where defendant did not deny unlawful possession of whisky, or attempt to show it was for personal use only, the presumption created by National Prohibition Act, tit. 2, § 33, is sufficient to sustain a finding that the liquor was kept for the purpose of being sold, bartered, or exchanged in violation of the act, and such presumption is sufficient to show guilt of maintaining a nuisance under section 21 of title 2 of the act. 2. Intoxicating liquors 236(9)—Single sale or act of possession may, under the circumstances, show nuisance. Though a single sale of liquor, or the mere unlawful possession, does not under all circumstances violate National Prohibition Act, tit. 2, § 21, making it punishable to maintain a nuisance by keeping a place for the violation of the act, the circumstances surrounding the sale or the single act of possession may be such as to warrant the inference that the single act was part of a habit, and therefore sufficient to sustain a conviction for nuisance. In Error to the District Court of the United States for the Southern District of West Virginia, at Charleston; George W. McClintic, Judge. Walter Barker was convicted of violating the National Prohibition Law, and he brings error. Affirmed. J. Sherman Lilly, of Charleston, W. Va., for plaintiff in error. Before WOODS and WADDILL, Circuit Judges, and GRONER, District Judge. GRONER, District Judge. Plaintiff in error was defendant below, and will be hereinafter referred to as defendant. In April, 1922, he was sentenced to pay a fine of $300 and be confined in jail for eight For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes months upon conviction of violation of the National Prohibition Law (41 Stat. 305). The information upon which he was tried contained the usual counts of, first, transportation and possession; second, manufacture; third, possession of property designed for manufacture; and, fourth, an additional count charging the maintenance of a nuisance under section 21 of title 2 of the act. The undisputed evidence shows that at the time of his arrest defendant was in possession of about two gallons of corn whisky-a part of which was found in his residence and a part under the counter in his store close by-and that in his barn on the same premises were about 100 gallons of mash fit for distillation into whisky. Defendant offered no evidence in his own behalf, and the jury found him guilty under the first, third, and fourth counts. At the conclusion of the evidence the court was asked: (a) To instruct a verdict for the defendant as to all of the counts save that of possession; and (b) that possession of whisky does not constitute a nuisance under section 21 of the act. Each of these instructions the court refused to give, and, this action of the court constitutes the only assignments of error which, in our opinion, it is necessary to notice. [1] From what has been said it will be observed that there was no denial on the part of the defendant of the unlawful possession of whisky, and likewise no attempt on his part to show that such possession was for personal use only, as was the case in Street v. Lincoln Safe Deposit Co., 254 U. S. 88, 41 Sup. Ct. 31, 65 L. Ed. 151, 10 A. L. R. 1548. Under these circumstances the presumption created by section 33 of title 2 of the act applies, and the unlawful possession is itself, when neither explained nor denied, sufficient to sustain a finding that such liquor is kept for the purpose of being sold, bartered or exchanged, in violation of the act. The case, therefore, as made, inevitably leads to the conclusion that the defendant was then in unlawful possession of liquor kept in his store room for barter and sale, and this brings us to the only point in the case, viz. whether such evidence, without more, is sufficient to bring the offense within the terms of the nuisance section, and as to this we think there can be no reasonable doubt. [2] We do not mean to be understood as deciding that a single sale of liquor, or the mere unlawful possession of liquor, under all circumstances may be construed to be a violation of section 21, because so to decide would be to render meaningless the other provisions of the law in which the Congress has denounced these specific acts, and provided punishment for their violation. Nor is it correct, on the other hand, to say that under some circumstances a single sale or a single unlawful possession may not in itself be sufficient to bring the section referred to into operation, for, as was said in another case construing this same provision of the act: "There could be, however, an almost irrefutable conclusion drawn from a single sale, provided the facts surrounding such sale warranted the inference that it was one of the ordinary and usual incidents of the business there conducted." Lewinsohn v. U. S. (C. C. A. Seventh Circuit) 278 Fed. 421. Each such case must therefore depend upon its own facts. If the evidence be confined to a single sale, with no evidence of other viola |