[1,2] This application, for return of unlawfully seized papers, is seasonably made. Petitioner contends that, since the warrant did not authorize search for books and records, the authority of the officers was limited to search and seizure of liquor and containers and property only. This contention, in my opinion, must prevail, for the seizure in question was clearly wrongful, if tested by the Fourth Amendment of the Constitution and the laws of the United States. It was wrongful, even though probable cause existed for the issuance of the warrant and discovery of liquor and apparatus for manufacturing, since an invalid search is not "made lawful by what it brings to light." A. J. Byars v. U. S., 273 U. S. 28, 47 S. Ct. 248, 71 L. Ed. 520, recently decided by the Supreme Court. The Fourth Amendment clearly prohibits unreasonable searches and seizures and issuance of a warrant unless the oath or affirmation particularly describes (1) the place to be searched; (2) the person or thing to be seized. The government concedes that the latter requirement was not complied with, and that petitioner's rights have been violated, but nevertheless urges that the books and papers, taken without authority, should be impounded so as to enable using them on the trial as evidence against all the defendants other than petitioner, who alone invokes violation of his personal rights. I do not agree with the reasoning advanced in support of this view. The adjudications cited, as bearing on the point, are either distinguishable or at variance with analogous decisions especially by the Circuit Court of Appeals of this circuit. Kirvin v. U. S., 5 F. (2d) 282.

Counsel relies on Sayers v. U. S. (C. C. A.) 2 F. (2d) 146, but there the seizure of papers was upheld on the ground that the offense was committed in the presence of the officers, who then and there arrested the offender and seized evidence of the crime incidentally discovered; while in Marron v. U. S., 8 F. (2d) 251 (9th Circuit), the seizure of a ledger containing a schedule of liquors on hand and sales from day to day was also incidental to the arrest.

In the Kirvin Case, supra, a case this court is required to follow, and wherein the facts are not as strong as here, the officers directed by the warrant to search the premises and seize liquors, books, and records pertaining to the sale and transportation of such liquors. But the court quashed the warrant relating to the seizure of the books

affirmation failed to show the use of books and papers in connection with any sales, and their seizure was illegal; it not being shown that they were the means or instruments of the crime. The court, by Chief Judge Manton, substantially said that it is not enough that papers seized may be some evidence of the crime; the affidavit filed with the commissioner must set out a description of the books and papers used in connection with the sale of alcohol.

[3] So in this case, to accord the petitioner the protection in his personal rights guaranteed by the Constitution and laws of the United States, it must be ruled that forcibly entering his safe and seizing his books and papers, several days after the execution of the search warrant authorizing a search for liquor and stills, was unreasonable, wrongful, and a violation of the Fourth Amendment and Act of June 15, 1917 (40 Stat. 228 [18 USCA § 611 et seq.]). The papers and documents were not found incidental to the detection of unlawful manufacturing and possessing, and were not shown to have been the means of committing the offense. It is not enough that the papers seized may be evidence of crime. There was no authority shown to make the search and seizure in question. Nor can the documents be kept, copied, or impounded, or used on the trial. Silverthorne Lumber Co. v. U. S., 251 U. S. 385, 40 S. Ct. 182, 64 L. Ed. 319. Even though the petitioner was arrested, the papers were not on his person, and, as said in the Kirvin Case, "the distinction has been recognized between what one carries about on his person and what one keeps in his house."

The government stresses the case of Remus v. U. S. (C. C. A.) 291 F. 501, as authority for use of books and papers, unlawfully seized, against other defendants joined with the petitioner, but that case is not strictly in point. No application was made by Gehrum for return of his papers unlawfully seized. He elected to go to trial, and the evidence relating to unlawful seizure was held cured by its seasonable withdrawal from the jury by the trial court, and, in the circumstances, the other defendants had no valid ground of objection to the evidence; their home not having been invaded.

There are other adjudications of a similar import cited by the government, but, in my opinion, they are clearly distinguishable from the case at bar. On the other hand, there is abundant authority that petitioner, in view of the circumstances, is entitled to a return of his books, papers, and documents unlaw

fully seized. Kirvin v. U. S., supra; U. S. v. Friedberg (D. C.) 233 F. 313; U. S. v. Hill, (D. C.) 263 F. 812; Weeks v. U. S., 232 U. S. 383, 34 S. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177; Silverthorne Lumber Co. v. U. S., 251 U. S. 385, 40 S. Ct. 182, 64 L. Ed. 319.

In Hagen v. U. S. (C. C. A.) 4 F. (2d) 801, the search warrant contained no statement that any books or documents showed unlawful sale of liquor on the premises or on defendant's person, and the court held that the seizure was unwarranted; that the legal effect of such a search and seizure of papers was to compel defendant to be a witness against himself, and his conviction of conspiracy was reversed.

In U. S. v. Friedberg, supra, it was held that a search, to be lawful, and therefore reasonable, must not only be confined to the place, but that the things seized must be particularly described.

The search warrant, authorizing search for liquor possessed on the described premises, complied with the Constitution and laws, but, as to the subsequent seizure of books and papers, the petitioner's rights were violated, and they must be returned to him. The petition of the government to impound them for use on the trial is denied.

KOEHRING CO. v. FOOTE CO., Inc. District Court, W. D. New York. June 11, 1927.

Patents 292-Demand for treble damages in infringement suit does not deprive complainant of right to file interrogatories.

Demand for treble damages in infringement suit does not make it one for penalty or forfeiture, nor deprive complainant of right to file interrogatories.

In Equity. Suit by the Koehring ComIn Equity. Suit by the Koehring Company against the Foote Company, Inc. On motion by defendant to strike out interrogatories. Denied in part and granted in part.

John S. Powers, of Buffalo, N. Y. (John F. Robb, of Cleveland, Ohio, of counsel), for plaintiff.

Kenefick, Cooke, Mitchell & Bass, of Buffalo, N. Y. (Parker Cook, of Washington, D. C., of counsel), for defendant.

HAZEL, District Judge. The supplementary interrogatories propounded by order of the court, under date of February 8th, on separate papers, resulted from defendant's

request to be apprised of the particular claims upon which plaintiff would rely at the hearing. They were intended to relate to a description of defendant's machine to enable plaintiff to state definitely what claims of the patent in suit were infringed. On motion, the supplementary interrogatories were stricken out on defendant's contention that treble damages, recovery of a penalty, were demanded, and the rule of Healthometer Co. v. Jacobs Bros. (D. C.) 12 F. (2d) 96, was applied.

The interrogatories of April 25, 1927, however, for discovery in support of the cause of action, were filed pursuant to equity rule 58.

Defendant now moves that they also be stricken from the record without requiring an answer, on the ground, first, that they are the third set of interrogatories propounded and were filed without leave of the court; and, second, that, as treble damages are demanded in the bill, the action is one to recover a penalty, and, accordingly, plaintiff is not entitled to propound interrogatories. These objections are not regarded as substantial.

In the absence of rule in this district, this court ordinarily follows a rule of practice established in another district of the Second Circuit, and therefore the decision of Judge Moscowitz in the Healthometer Case was applied on the prior motion to strike out, but my attention is now drawn to Judge Learned Hand's decision in Grasselli Chemical Co. v. Nat. Aniline & Chemical Co. Inc. (D. C.) 282 F. 379, wherein it was ruled that a demand for treble damages in an action for infringement of a patent was not penal, and, since interrogatories take the place of discovery under the new equity rule, plaintiff had the right to require answers equivalent thereto.

And in Brady v. Daly, 175 U. S. 148, 20 S. Ct. 62, 44 L. Ed. 109, an action arising out of infringement of copyright of a dramatic composition, the Supreme Court decided that such an action, though treble damages were demanded in the bill, was not for a penalty or forfeiture. That case applies by analogy to the case at bar; indeed, the weight of authority is that the demand for treble damages in an infringement suit is remedial, and defendant cannot refuse to answer interrogatories rightly filed. See, also, Beacon Folding Mach. Co. v. Rotary Mach. Co. (D. C.) 17 F. (2d) 934, wherein the authorities are collected and comprehensively reviewed.

In A. B. Dick Co. v. Underwood Typewriter Co. (D. C.) 235 F. 300, Judge Mayer,

having before him objections, in a patent suit, to answering interrogatories propounded by plaintiff, said:

"The tendency of the District Court of this district is to be liberal as to interrogatories, all to the end that time and expense shall be saved to the litigants, and that, when the case comes on for trial the case shall come down to the real issues as clearly and speedily as may be. In a case like this, the defendant should furnish plaintiff with a true specimen of the device alleged by plaintiff to infringe, and also state in accurate detail the process employed; but interrogatories ordinarily should not be in the language of the claims, nor should a defendant be required to state the names of his experts or others from whom the information is obtained for his answers to the interrogatories."

With this rule in mind, I come then to the specific objections of the defendant to the interrogatories filed by the instant plaintiff. Eleven patents are involved, and it cannot be doubted that answers to them, in the main, will curtail the time of trial and enable the plaintiff to obtain discovery in relation to matters upon which it would have the right to examine the defendant or its witnesses at the hearing.

Interrogatory 1 (a, b, c, and d), relating to the ascertainment of a description of the machine exhibited by defendant before the bill was filed. Inasmuch as photo prints have already been filed by defendant, of an application for patent pending in the Patent Office, I can see no objection to making answer, though comparisons are not required; the purpose of the inquiry being to identify the so-called good road paving machine with the photostat drawings.

Interrogatory 2 (a, b) aims at the ascertainment of places where the machines described in the photostat or drawings were sold or used. Objection that it attempts to pry into defendant's customers is unsubstantial, and the question should therefore be answered.

Interrogatory 3 need not be answered. The relationship between the Franklin Company and the defendant is not believed material.

Interrogatory 4, relating to letters between Foote Concrete Machinery Company and the Foote Company, Inc., need not be answered, as it relates to matters of evidence written about eleven years ago, and seems to fall within the rule of Wright v. Dodge Bros. (D. C.) 300 F. 455, viz. that the specific interrogatory is too indefinite and apparently irrelevant to the issues involved. If, however,

plaintiff considers it necessary that such letters should be produced, as bearing upon acquiescence, it may avail itself of a subpoena duces tecum. As to subdivisions (a) and (b), relating to defendant's efforts to obtain licenses from plaintiff, no answer will be required, inasmuch as the plaintiff already knows whether defendant tried to secure a license from it, and also whether it refused to grant the same.

Interrogatories 5, 6, 7a, 8, are not thought indefinite, and therefore should be answered. Interrogatory 9 need not be answered, since making comparisons would require an interpretation of the patent in suit. But subdivisions (a) and (d) are matters that may be brought out at the trial, if then considered relevant and material.

Interrogatory 10 should be answered. That it tends to draw out information regarding the sale of attachments for the paving machine at a time prior to six years before the suit was begun is not thought sufficient reason for sustaining the objection.

Interrogatory 11 is believed immaterial, and need not be answered.

Interrogatories 12, 13, 14, and 15 need not be answered at this time, since they tend to require defendant to give the ground of its defense, and, in a sense, the argument based thereon. Besides the prior art and anticipations are set up in the answer and relate to prior patents and file wrappers to which plaintiff has access.

Interrogatories 16, 17, 18, 19 and 20a, should be answered as far as possible. They will tend to enable plaintiff to prepare to meet the issue. Answer may be re

Interrogatory 21. served to the hearing.

Interrogatory 22, calling for comparison between drawings and claims, need not be answered.

Interrogatory 23 relates to information that may be obtained from the file wrapper, and answer thereto will not be required.

Interrogatory 24 may be helpful, and therefore I can see no objection to answering it.

Interrogatory 25 relates to furnishing additional descriptions of photos already filed, especially relating to operation of the cable means and boom. It should be answered.

Interrogatories 26, 27, 28, 29, 30, 31, 32, 33, and 34 should be answered.

Interrogatory 35 need not be answered, since it may be that an answer thereto requires construction of patent claims.

An order as above indicated may be en tered.

UNITED STATES v. CARMAN. District Court, W. D. New York. June 4, 1927.

1. Acknowledgment 48/2, New, 1927 Current Digest-Statute relating to_false_acknowledgment or statement in matters affecting government held to apply to reports of transactions of permittee under Prohibition Act. (27 USCA; Cr. Code § 31 [18 USCA § 75]).

Criminal Code, § 31 (18 USCA § 75), mak

ing it an offense for an officer authorized to administer oaths or take acknowledgments to knowingly make any false acknowledgment or statement in matters submitted to, made with,

or taken on behalf of the United States, re

quired by law or regulation, held to apply to acknowledgments and statements made in connection with reports of transactions by a permittee under the Prohibition Act (27 USCA

[Comp. St. § 101384 et seq.]), and required by regulation of the Treasury Department.

2. Acknowledgment 482, New, 1927 Cur

rent Digest-Criminal statute held not to apply to oath or acknowledgment to document not required by law to be verified by oath.

Such statute, however, held not to apply to an oath or acknowledgment to report of a permittee, made under regulation No. 61, § 112, in force in 1923-24 which does not require the report to be verified by oath or affirmation.

Criminal prosecution by the United States against Nelson Carman. On demurrer to and motion to quash indictment. Demurrer sustained.

Richard H. Templeton, U. S. Atty., of Buffalo, N. Y. (Roy P. Ohlin, Asst. U. S. Atty., of Buffalo, N. Y., of counsel), for the United States.

Harold V. Cook, of Buffalo, N. Y. (James C. Moore and Senator Stanley, of counsel), for defendant.

HAZEL, District Judge. The indictment in five counts charges the defendant, Nelson Carman, a notary public authorized to administer oaths, with making a false acknowledgment and statement relating to the appearance before him of one Sciarrino, who held a permit to buy specially denatured alcohol for the manufacture of toilet articles, and as provided by the National Prohibition Act (27 USCA [Comp. St. § 101341⁄2 et seq.]). The alleged false acknowledgments and statements are reports of transactions in denatured alcohol dealings contained on form 1482, under section 112, Regulation No. 61 of the Treasury Department as in force for the years 1923-24, and in violation of section 31 of the Criminal Code (18 USCA § 75).

The defendant has filed a demurrer to the indictment for insufficiency at law and moves to quash.

The first point raised is that the statute does not specifically include a false certification of an oath on form 1482; and the second is that the Treasury rules and regulations do not require an oath thereto, or to said record or report.

[1] Is the statute broad enough to include the offense, assuming that the regulations required verification of the report under oath?

Section 31 reads as follows:

"Whoever, being an officer authorized to administer oaths or to take and certify acknowledgments, shall knowingly make any false acknowledgment, certificate, or statement concerning the appearance before him or the taking of an oath or affirmation by any person with respect to any proposal, contract, bond, undertaking, or other matter, submitted to, made with, or taken on behalf of, the United States, ⚫ required by law or regulation made in pursuance of law, or with respect to the financial standing of any principal, surety, or other party to any such proposal, contract, bond, undertaking, or other instrument, shall be fined not more than two thousand dollars, or imprisoned not more than two years, or both."

Defendant's interpretation of the statute is that the oath or affirmation to which the statute makes reference is limited by the words "with respect to any proposal, contract, bond, undertaking, or other matter submitted to, made with, or taken on behalf of, the United States," to actual relations with the government by which the false acknowledgment or statement results in a fraud upon the government, as evidenced by the class enumerated as distinguished from a matter not related thereto; and, moreover, that the general words "or other matter" must be associated with the specified class or enumeration. It is true, as contended, that, under the doctrine of ejusdem generis, any uncertainty or ambiguity in phraseology must be interpreted by reference to the entire subject-matter, and that words of general import must be of the same kind or species. But resort to this rule is ordinarily only had with a view of ascertaining the intent of Congress in enacting a statute. If the meaning of the general language is fairly permissive of enlargement beyond the particular thing specified, the rule does not apply.

In U. S. v. Mescall, 215 U. S. 26, 30 S. Ct. 19, 54 L. Ed. 77, the Supreme Court had before it an indictment charging a weigher, representing the government, with violation of section 9 of the Customs Administrative Act of June, 1890 (26 Stat. 131), which declared it to be an offense for an owner, im

porter, consignee, agent, or other person to make, or aid in making, false entries. The general words "or other person" in the statute, it was contended, had reference to a person of the same class as the persons specifically named. But the court ruled that the phrase "or other person," though having a different relation than the persons specifically included, nevertheless implied other persons having something to do with the entry aside from the owner or importer.

Hence, in this case, the distinctive inclusions in the statute, preceding the broader term "or other matter," certainly suggests that there was no intention on the part of Congress to limit violations to the matters of contracts, proposals, etc., and other forms of documents, requiring acknowledgments or certification, are fairly included. To rule otherwise would make the general phrase meaningless and fail to give effect to the entire statutory provision. Mason v. U. S., 260 U. S. 545, 43 S. Ct. 200, 67 L. Ed. 396. But it is not necessary to decide that the specific enumeration had no similitude to the words "or other matter," for the words "specific class" are believed to include any instrument pertaining to the making of a contract, while "bond and undertaking" may fairly be understood as relating to a document collateral to the contract. The general designation refers inferentially to the distinctive designation and was in association therewith. The user of the alcohol, in this instance, was required to have a permit, and conditions were imposed, together with a bond, to comply with the law, and failure to do so, in my opinion, would be in the nature of a fraud upon the government.

jurat. The regulation requires that a transcript of monthly reports be made on the 10th of each month, in duplicate, specifying the dealings and transactions, alcohol on hand, received and used by the permittee during the preceding month, and failure to file the required report on form 1482 subjected the permittee to citation for revocation of his permit. Under article 112, the records kept by the permittee were to be open to inspection. On the reverse side of the form are printed instructions indicating the purpose of the report, but the instructions do not state that the form or copy must be sworn to, and, accordingly, I think the jurat must be regarded as surplusage and immaterial.

The government, however, contends that the jurat implied a verification under oath; but, as an oath was not required by law or the rules and regulations, I do not accept this view. Article 109 of Regulation 61 specifically required a permittee to make monthly reports of daily receipts and deliveries, in tripby the dealer, one sent to the prohibition adlicate, under oath, one copy to be retained ministrator, the other to the commissioner (other oaths are also required to various other reports); therefore the presumption is that the form in question did not require a statement or oath, since it was merely a summary from the reports and records previously filed. It may be that the commissioner intended that the form should be sworn to, but no rule or regulation embodying such a requirement was adopted, and the jurat alone does not have the force and effect of law. Evidently this view was entertained by the department, for its new form, dated July, 1926, embodies an instruction requiring that one copy of the report shall be sworn to. The government also suggests that the jurat was sufficiently authorized by section 34, tit. 2 of the National Prohibition Act (27 USCA § 51 [Comp. St. § 10138/2u]), but that provision, in my opinion, does not apply. It simply provides for keeping records and reports, subject to inspection, and that copies, duly certified, may be used as evidence with like effect as if they were originals.

The indictment is defective in its failure to aver a violation of section 31 of the Criminal Code, and the demurrer must be sus