when a petition for the writ is presented: First. If it appears therefrom that it does not state a cause for the issuance of the writ, and that the prisoner, if produced, would be remanded, he may dismiss it. Of course, the petitioner should have ample opportunity to be heard upon the sufficiency of his petition. Second. He may issue an order to show cause. Third. He may award the writ.

In this connection the language of Mr. Justice Brewer in the case of Storti v. Massachusetts, 183 U. S. 138, 143, 22 Sup. Ct. 72, 74, 46 L. Ed. 120, is not inapt. After referring to section 761 of the Revised Statutes, supra, he says:

"Proceedings in habeas corpus are to be disposed of in a summary way. The interests of both the public and the petitioner require promptness; that if he is unlawfully restrained of his liberty, it may be given to him as speedily as possible; that, if not, all having anything to do with his restraint be advised thereof, and the mind of the public be put at rest, and also that, if further action is to be taken in the matter, it may be taken without delay. Especially is this true when the habeas corpus proceedings are had in the courts of a jurisdiction different from that in pursuance of whose mandate he is detained. This matter of promptness is not peculiar to these cases in federal courts, but is the general rule which obtains wherever the common law is in force. It is one of those things which give to such proceedings their special value, and is enforced by statutory provisions, both state and federal. The command of the section is 'to dispose of the party as law and justice require.' All the freedom of equity procedure is thus prescribed; and substantial justice, promptly administered, is ever the rule in habeas corpus."

It is next urged that the information upon which the petitioner was tried in the state court does not state an offense. This was a question for the state court to determine. Where the statute creating the offense is not repugnant to the federal Constitution, and the court has jurisdiction thereof, the determination of the state court touching the sufficiency of the charge is controlling in the federal courts, where the defendant seeks to be relieved upon habeas corpus. The cases are numerous to this effect. Caldwell v. Texas, 137 U. S. 692, 11 Sup. Ct. 224, 34 L. Ed. 816; Bergemann v. Backer, 157 U. S. 655, 15 Sup. Ct. 727, 39 L. Ed. 845; Kohl v. Lehlback, 160 U. S. 293, 16 Sup. Ct. 304, 40 L. Ed. 432; Howard v. Fleming, 191 U. S. 216, 24 Sup. Ct. 49, 48 L. Ed. 121.

In this relation it is further urged by petitioner that the state court of Washington had no jurisdiction of the crime of conspiracy for which the petitioner was tried and convicted, for the reason that the offense of conspiracy at common law is not indictable or triable in that state. In Howard v. Fleming, supra, the case last cited, the identical question was presented to the Supreme Court. It arose also in the same way. The petitioner had been tried and convicted of a conspiracy at common law, had appealed to the Supreme Court of the state without success, and had gone further than here. He had sued out a writ of error to the Supreme Court of the United States, and while this was pending he petitioned the Circuit Court for a writ of habeas corpus. This proceeding was dismissed, and he appealed. The Supreme Court said:

"The highest court of the state has affirmed the validity of the proceedings in that trial, and we may not interfere with its judgment unless some right guaranteed by the federal Constitution was denied and the proper steps

As

taken to preserve for our consideration the question of that denial. The first contention demanding notice is that the indictment charged no crime. found, it contained three counts; but the two latter were abandoned, and therefore the inquiry is limited to the sufficiency of the first. That charged a conspiracy to defraud. There is in North Carolina no statute defining or punishing such a crime; but the Supreme Court held that it was a commonlaw offense, and as such cognizable in the courts of the state. In other words, the Supreme Court decided that a conspiracy to defraud was a crime punishable under the laws of the state, and that the indictment sufficiently charged the offense. Whether there be such an offense is not a federal question, and the decision of the Supreme Court is conclusive upon the matter. Neither are we at liberty to inquire whether the indictment sufficiently charged the offense."

The information upon which the petitioner here was convicted has been held by the Supreme Court of the state of Washington to be in all respects sufficient. State v. Erickson, 54 Wash. 472, 103 Pac. 796. While the state Supreme Court has not, so far as we are at present advised, explicitly passed upon the direct question whether the offense of conspiracy is cognizable in the state courts or not, it has previously entertained jurisdiction respecting the same. State v. Messner, 43 Wash. 206, 86 Pac. 636. The territorial Supreme Court, however, did determine, prior to the adoption of the state Constitution, that the common-law offense of conspiracy was indictable under section 782 of the territorial Code of 1881, which is the same in effect as the section under which the petitioner stands convicted. Under the Constitution (section 2, art. 27) this law was continued in full force with the weight of construction placed upon it by the territorial court, so that it may be said that the question has been determined in that jurisdiction.

But as the proposition is advanced that the act under which the petitioner was prosecuted is unconstitutional, measured by the state Constitution, it is without validity, and no law, and hence that a prosecution under it is not due process, and deprives the defendant of the equal protection of the law, contrary to the fourteenth amendment to the federal Constitution, we will examine further into the situation. Under the territorial Code before Washington was admitted as a state, section 782, relating to "Common-Law Offenses," provided as follows: "All offenses at common law, which are not hereinafter defined by statute, are indictable and triable in the district courts of the territory."

In 1891 the Legislature of the state passed an act relative to prosecution of public offenses, and amending section 782, including other sections, section 1 of which reads as follows:

"Section 782 of the Code of Washington, of 1881, is amended to read as follows: 'For all offenses at common law, which are not hereinafter defined by statute, the offender may be tried in the superior courts of this state."" Laws 1891, c. 28.

This section has become section 6774 of Ballinger's Annotated Codes & Statutes of Washington (Pierce's Code, § 1545) and is the section under which the petitioner was tried and convicted.

It is now claimed that this amendment is void, because not adopted in accordance with section 37, art. 2, of the Constitution of that state, which provides that "no act shall ever be revised or amended, by mere

reference to its title; but the act revised or the section amended shall be set forth at full length," and section 19, art. 2, providing that "no bill shall embrace more than one subject, and that shall be expressed in the title." It is perfectly manifest from a glance at the new act that there was here no attempt at amendment by mere reference to the title, for the section as amended is set forth at full length. The objection on this ground is therefore without merit.

The next objection is that the subject of the act is not expressed in the title, and more especially is it urged that it was not competent for the Legislature to amend by a simple reference to the section in the amendatory act. Counsel mistakes the true condition. The subject of the act relates to the prosecution of public offenses. Offenses at common law are very naturally embraced within the subject. So would other offenses be also embraced within the same subject, and there was not an attempt to amend by simple reference to the section. Both the subject was expressed in the title and the specific section was amended as falling within the subject, by setting it out in full as amended. It would seem that there could be no more exact compliance with the constitutional requirements than this.

But it has been held specifically by the state court that a section of the Code may be amended by an act under a title simply providing for the amendment of such section by its number, without any further designation of the subject-matter of the section to be amended. Marston v. Humes, 3 Wash. St. 267, 28 Pac. 520. This case specifically overrules the case of Harland v. Territory of Washington, 3 Wash. Ť. 131, 13 Pac. 453, relied upon by counsel, and the cases of State v. Halbert, 14 Wash. 308, 44 Pac. 538 and State v.. Smith, 15 Wash. 698, 46 Pac. 1119, are distinguishable as relating to territorial acts, in effect declared invalid by the territorial court prior to the taking effect of the Constitution. Thus it would seem that by the holdings of the state court this amendment was regularly adopted and is valid. This disposes of all the questions presented adversely to counsel's contention, and the judgment of the court below will therefore be affirmed.

SNOW et al. v. HAZLEWOOD et al.

MASTERSON et al. v. SNOW et al.

(Circuit Court of Appeals, Fifth Circuit. May 16, 1910.)

Nos. 2,018, 2,030.

1. APPEAL AND ERROR (§ 162*)—WAIVER OF RIGHT OF APPEAL-ACCEPTANCE OF BENEFITS OF DECREE.

The withdrawal by a complainant from the registry of the court of sums on deposit therein awarded her by the decree does not bar her right of appeal from other portions of the decree.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 984991; Dec. Dig. § 162.*]

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

2. JOINT-STOCK COMPANIES (§ 15*)—LIABILITY AS PARTNERS TO THIRD PER

SONS.

Where a private association of persons having negotiable shares, which were transferred from time to time, purchased property as a partnership, on a cancellation of the deed to such property for fraud, and the direction of an accounting to the grantor for the proceeds of portions of the property sold, all members of the association at the times of such sales are liable as partners.

[Ed. Note. For other cases, see Joint-Stock Companies, Dec. Dig. § 15.*]

3. BROKERS ($65*)-TRUSTS (§ 170*)-DEED VOIDABLE FOR FRAUD-ACCOUNTING BY GRANTEES AS TRUSTEES DE SON TORT.

One who made a fraudulent sale of his principal's property as agent, under a power of attorney which entitled him to a share of the proceeds, and who has a secret interest in the purchase, on the cancellation of the deed and direction of an accounting by the purchasers for the proceeds of portions resold by them, cannot take anything under the provisions of the power of attorney, nor are any of the purchasers so ordered to account entitled to compensation for services rendered in making such resales; their accounting being substantially, if not in terms, as trustees de son tort.

[Ed. Note.-For other cases, see Brokers, Cent. Dig. 88 48-50; Dec. Dig. § 65;* Trusts, Cent. Dig. § 225; Dec. Dig. § 170.*]

4. APPEAL AND ERROR (§ 1194*)-EFFECT OF DECISION-QUESTIÓNS DETER

MINED.

Where a deed was canceled for fraud by decree entered on a mandate of the Circuit Court of Appeals, which also directed an accounting by the defendants with respect to the property conveyed, each of defendants was precluded by such adjudication from claiming on the accounting that he was an innocent purchaser for value.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 46484660; Dec. Dig. § 1194.*]

Appeal and Cross-Appeal from the Circuit Court of the United States for the Eastern District of Texas.

Suit in equity by Annie E. Snow and others against R. R. Hazlewood and others. Decree for complainants, and all parties appeal. Reversed, and new decree directed.

See, also, 157 Fed. 898, 86 C. C. A. 226.

In No. 2,018:

W. D. Gordon, for appellants.

Horace Chilton and John Charles Harris, for appellees.

In No. 2,030:

John Charles Harris, John C. Matthews, J. A. L. Wolfe, Horace Chilton, and Presley K. Ewing, for appellants.

W. D. Gordon, for appellees.

Before PARDEE, MCCORMICK, and SHELBY, Circuit Judges.

PARDEE, Circuit Judge. A motion is made to dismiss the appeal in No. 2,018. The appellant, not satisfied with the relief granted in the Circuit Court, sued out this appeal, contesting certain credits allowed the appellees, and asking enlarged relief. Among other things the decree below contained the following:

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

179 FEDERAL REPORTER.

"It is further ordered, adjudged, and decreed that said complainants are authorized to withdraw from the registry of the court said sum of ten thousand dollars ($10,000.00) deposited by them as aforesaid by way of tender. It is further ordered, adjudged, and decreed that said complainants are entitled to the sum of $2,812.50 out of the $3,750, which was paid into the registry of this court by the receivers of the Lone Star & Crescent Oil Company on the 23d day of January, 1905, and said complainants are authorized to withdraw said amount, to wit, $2,812.50."

Prior to the suing out of this appeal the appellants withdrew said sums from the registry of the court, and such withdrawal is the basis of the motion to dismiss.

We have carefully examined the authorities cited by appellees in support of their motion to dismiss and by the appellants contra. United States v. Dashiel, 3 Wall. 688, 702, 18 L. Ed. 268, the Supreme In Court said:

"Partial satisfaction of a judgment, whether obtained by a levy or voluntary payment, is not, and never was, a bar to a writ of error, where it ap peared that the levy was made or the payment was received prior to the service of the writ, and there is no well-considered case which affords the slightest support to any such proposition. Subsequent payment, unless in full, would have no greater effect; but it is unnecessary to examine that point, as no such question is presented for decision. Where the alleged satisfaction is not in full, and was obtained prior to the allowance of the writ of error, the authorities are unanimous that it does not impair the right of the plaintiff to prosecute the writ, and it is only necessary to refer to a standard writer upon the subject to show that the rule as here stated hasprevailed in the parent country from a very early period in the history of her jurisprudence to the present time."

This case was cited with approval and followed in Embrey v. Palmer, 107 U. S. 8, 2 Sup. Ct. 25, 27 L. Ed. 346, and Embrey v. Palmer was cited and followed in Reynes v. Dumont, 130 U. S. 394, 9 Sup. Ct. 486, 32 L. Ed. 934, and we think that these cases should control in the disposition of this motion, particularly as, from our examination of the record, we conclude that the items alleged to have been withdrawn from the registry of the court are not involved in the appeal.

The motion to dismiss is therefore denied. When this case was before this court at 898, 86 C. C. A. 226) we held, and so instructed the Circuit Court, former term (157 Fed. that:

"The decree of the Circuit Court should be reversed, and the complainants given relief canceling the deed to Casey of November, 1901, the power of attorney to Hazelwood, of date November 25, 1901, and the deed executed thereunder June 18, 1902, to Campbell and Swayne, trustees, and recorded in Jefferson county, Texas, vol. 65, pp. 62-64, except so far as the rights of innocent purchasers are concerned, and ordering an accounting of all sales and releases and settlements made by the defendants based on complainants' rights in the Veatch survey, and, on such accounting, that the complainants should have such relief against the several defendants as equity and good conscience may require-all conditioned upon the complainants' paying into court for the benefit of the Hogg-Swayne Syndicate the $10,000 as tendered in the twenty-fourth paragraph of the bill."

It is to be noticed that this covers the setting aside and canceling of certain deeds and a power of attorney, and also an accounting of all sales, releases, and settlements made by the defendants (who were