perience, aptitude, or desire. That it must be taken as in some measure qualifying the rule of civiliter mortuus, we have no doubt. Byers v. Sun Savings Bank, 41 Okl. 728, 139 P. 948, 52 L. R. A. (N. S.) 320, Ann. Cas. 1916D, 222. The full extent of such qualification it is unnecessary here to decide.

When plaintiff went upon the ground in controversy he was in the exercise of the liberty conferred by his parole, and in exploring the ground, discovering mineral, . marking the boundaries of his claim, and posting and filing his notices, he was violating no law, even if it be conceded that such acts did not have the efficacy to vest in him a right. The Alaska statute, supra, purports only to suspend the civil rights of a convict "during the time or duration" of the imprisonment. So that, even though such duration be held to have continued after the 'plaintiff was granted a parole, it terminated on May 20, 1922, at which time defendant had acquired no rights in the ground in dispute, other than such, if any, as flowed from his location of July, 1921. Our conclusion, therefore, is that, even though it be held that plaintiff was not competent, during the term of his sentence, to take such a grant as is implied by the valid location of a mining claim, upon the expiration of such term, no other rights intervening, the grant became effective and related back to the date of the location. We think the principles recognized in Shea v. Nilima (C. C. A.) 133 F. 209, and McKinley v. Alaska M. Co., 183 U. S. 563, 22 S. Ct. 84, 46 L. Ed. 331, are clearly ap

plicable.

"(d) The number of feet in length and width of claim.

"(e) It shall set forth the description with reference to some natural object, permanent monument, or well-known mining claim, together with a description of the boundaries thereof so far as applied to the numbering of stakes or monuments.

"A failure to record a certificate of location of claim as herein provided shall operate as and be deemed abandonment thereof, and the ground so located shall be open to relocation: Provided, that if a full compliance with the preceding provisions of this act shall have been made before any location by another, such compliance shall operate to prevent the abandonment or forfeiture of such claim and save the rights of the original locator."

Defendant's certificate of location is as

follows:

"Chatanika, Alaska, July 1, 1921. "I have this day relocated the twenty acres of placer ground know in original records as the Anderson claim. Bounded on the west by the McFarlane fraction, on the south by the diamond fraction and McKnutt, on east by Serpentine, on north by the Duncan and 17 Creek.

"The ground runs 1,320 feet up and down Latanika and across Cleary creek about three hundred on west end. Ground lies in the Fairbanks mining and recording precinct. "Claim 16 below Cleary.

"Oliver A. McConnell. "Witness: Morris O'Leary. min. past 11 a. m. "Filed for record July 16, 1921, at 15

"Reed W. Heilig, Recorder."

For reasons which have often been ex

plained, the courts treat with great indul

gence inaccuracies and uncertainties in initial notices and markings prescribed for mining locations. But the same considerations do not apply to the recorded certificate of location, where, as here, a liberal length of time is given in which to make such record; and to uphold defendant's certificate, in the light of all the facts, would be to set at naught the substantial requirements of the law. Without deciding that each of the defects would, in itself, be fatal, it is to be noted that the certificate fails to disclose the width of the claim, to give a description by reference to numbered stakes or monuments (Purdum v. Laddin, 23 Mont. 387, 59 Pac. 153), to state the date of discovery or posting of location notice, or to tie the claim to

on the yards of several mills owned and operated by the bankrupt, was subject to an equitable charge or lien in favor of the appellee, as security for the debt owing to it. The transactions upon which the asserted claim was based are indicated by the following statement:

The bankrupt and the appellee entered into a written contract on April 28, 1926. By that contract the appellee agreed to advance the bankrupt $5,000 on May 1, 1926, and $5,000 on June 1, 1926, to cover lumber then stacked on yards of the bankrupt, for which advances the bankrupt agreed to deliver to appellee bills of sale showing the approximate amount of feet of lumber at each place, and that each pile shall be plainly marked "Property of Geo. W. Miles Timber & Lumber Company." The just mentioned part of that contract was fully performed; the bankrupt's obligations for the $10,000 advanced pursuant to the above-mentioned provisions having been fully discharged. The debt owing by the bankrupt to the appellee when the bankruptcy petition was filed was incurred after the obligation for the above-mentioned advances aggregating $10,000 were discharged, and was evidenced by several notes given at different dates between August 2, 1926, and December 19, 1926. The above-mentioned contract contains the following:

"For and in consideration of the employment of the Miles Company as sales representatives of C. A. Magrill, to the extent of at least 20 cars or more per month, to be shipped from either Gladewater, Tex., plant, or Rusk, Tex., plant, or both, the Miles Company agrees and binds themselves to sell the yellow pine products of C. A. Magrill to the extent of 20 cars per month or more, both at his Gladewater and Rusk operations, during the life of this contract to the very best advantages possible and at the best obtainable prices.

"The intent of this contract is that the Miles Company which has exclusive sales of all yellow pine of all orders taken and entered into, to the extent of at least 20 cars per month, and any orders, when accepted by C. A. Magrill, are binding on him, unless mutually agreed to the contrary.

"It is further agreed and understood that the Miles Company has the exclusive sale of all yellow pine products, to the extent of at least 20 cars per month, produced and manufactured at either the Gladewater or Rusk, Tex., plants, whether the yellow pine products at either plant is subject to a bill of sale to the Miles Company or not, and if any

yellow pine lumber is sold direct to any company by C. A. Magrill, and such sales are made, which preclude the possibility of C. A. Magrill complying with this contract by shipping the Miles Company at least 20 cars of lumber per month, then the Miles Company is to receive a selling commission on the sale, the same as though the order had gone through the office of, the Miles Company. However, C. A. Magrill is not to sell any yellow pine on which the Miles Company has a bill of sale without permission of the Miles Company.

"C. A. Magrill agrees and binds himself to pay the Miles Company a selling commission of $1.50 per M on all common O lumber and $2.50 per M on all B & B tr. lumber net to the Miles Company on all yellow pine lumber shipped from Gladewater or Rusk, Tex., plants, to the extent of at least 20 cars per month.

"The Miles Company agrees and binds themselves to pay promptly upon receipt of invoices and bill of lading on all shipments made and covered by this contract, approximately 70 per cent. of the f. o. b. mill sale price, less 2 per cent. discount (also selling discount and the balance of the sales price f. o. b. mill, less 2 per cent. discount, if settled within 60 days) is to be credited on the notes of C. A. Magrill as soon as freight bill and settlement is received from final purchaser of the lumber.

"It is further stipulated and agreed that the Miles Company shall not be called upon to advance in excess of $10,000. This is the maximum amount to be advanced under this contract and agreement.

"This contract shall be binding on the day of execution, as represented by the signature hereunto attached, and shall remain in force for the period of one year, even though the advances made by the Miles Company shall have been fully paid prior to that time."

After the delivery of the lumber for which appellee got bills of sale, the bankrupt continued to make shipments to the appellee, but did not, except in one month, ship to appellee as much as twenty cars a month. During the time such shipments were made the bankrupt manufactured lumber and sold it wherever he could to the trade generally. It was thoroughly understood between the bankrupt and the appellee that the former could sell lumber to other customers, and a substantial part of the bankrupt's product was so disposed of. None of the lumber on the bankrupt's yards when the bankruptcy petition was filed was marked or designated in any

way as lumber subject to a charge or lien in favor of the appellee. After the obligation of the bankrupt for the original advances aggregating $10,000 was discharged, the appellee made additional advances to enable the bankrupt to operate his several sawmills, to pay his hands, to feed his teams, to purchase timber, etc. On the debts so incurred the bankrupt made payments by shipments of lumber pursuant to the contract, but at the date of the filing of the bankruptcy petition the bankrupt owed on that indebtedness a balance of more than $9,500.

The contract did not require any identified lumber to be held for or shipped to the appellee, except that which it was to get in consideration or by reason of the advances agreed to be made on May 1 and June 1. Above-quoted provisions of the contract indicate that it was intended to be permissible for the bankrupt to ship to appellee less than 20 cars of lumber per month, and, without permission of appellee, to sell to others any lumber not covered by a bill of sale made to appellee, but that, in case of the bankrupt's failure to ship to appellee at least 20 cars of lumber per month, the bankrupt was to be liable to the appellee for the stipulated selling commission on at least that amount of lumber per month. It appears that appellee was willing to forego the handling by itself as the bankrupt's sales representative of part, at least, of the lumber required to make twenty carloads a month, on condition that the bankrupt be liable for the stated commission on lumber otherwise disposed of by him. Under the contract as it was practically construed by the parties by their transactions under it, the bankrupt was at liberty to sell to the trade generally any part of the lumber produced and on hand at any given time during the period when the unpaid indebtedness of the bankrupt to the appellee was incurred.

The evidence did not show that all the lumber on hand when the bankruptcy petition was filed, or any definite and identified part thereof, was made subject to a charge or lien in favor of the appellee for the amounts advanced by it to enable the bankrupt to produce that lumber, or was so withdrawn from the bankrupt's dominion as not. to be subject to be sold or disposed of by him to third parties. On the contrary, the evidence indicates that it was consistent with

the contract, as practically construed by the parties, for the lumber on hand when the bankruptcy petition was filed to be treated as a stock of merchandise subject to be sold by the bankrupt to any one desiring to make purchases therefrom, without any obligation on the bankrupt to replace the lumber so sold. [1] Such a claim as the one asserted, that property in possession of a debtor is subject to a lien or charge in favor of a creditor to secure a debt to the latter, is not sustainable, unless the property intended to afford security is identified, or so described as to be capable of identification and separation from other property or assets of the debtor, which the latter is at liberty to dispose of to third parties free of any charge or lien, and to replace it, or not, as he sees fit. Walker v. Brown, 165 U. S. 654, 17 S. Ct. 453, 41 L. Ed. 865; National City Bank v. Hotchkiss, 231 U. S. 50, 34 S. Ct. 20, 58 L. Ed. 115.

[2] Counsel for the appellee invoked, the decision in the case of Hurley v. Atchison, Topeka & Santa Fé Ry., 213 U. S. 126, 29 S. Ct. 466, 53 L.. Ed. 729. The facts of that case distinguish it from the instant one, in that in the cited case a railway company, which by contract was entitled to get from a mine all the coal required by it in the operation of certain of its lines of railroad, made advances to the operator of the mine to enable the latter to mine coal to that amount, which was held to be subject to a charge or lien for such advances; while in the instant case the advances of the appellee were made for the purpose of enabling the bankrupt to produce lumber, all or an undefined part of which he was at liberty to dispose of to any one, without any obligation to replace the lumber so disposed of. We conclude that the appellee was not entitled to a lien or charge on the lumber in question, because that lum-· ber was the bankrupt's stock in trade, from which he was permitted to make such sales as he chose to make, without any obligation to replace the lumber sold to third parties.

In view of the above-stated conclusion, it is not material to determine whether, if the asserted lien or charge had existed, it would or would not have been superior to the right to the lumber conferred on the trustee of the bankrupt's estate by amended section 47a of the Bankruptcy Act (11 USCA § 75). The decree is reversed.

LEWIS et al. v. UNITED STATES.* Circuit Court of Appeals, Eighth Circuit. November 28, 1927.

No. 7492.

1. Courts 419-Original Eastern and Western districts of Oklahoma were continued for trial and punishment of crimes committed prior to enactment of statute creating three new districts (Jud. Code, § 59 [28 USCA § 121]; 28 USCA § 182).

Under Judicial Code, § 59 (28 USCA § 121 [Comp. St. § 1041]), and Act Feb. 16, 1925, § 1 (28 USCA § 182 [Comp. St. § 1088]), creating three new districts in Oklahoma, original Eastern and Western districts were continued for trial and punishment of offenses committed prior thereto, there being no application for transfer.

2. Jury 33 (3)-Defendants held not entitled to have jurors selected from counties transferred to another district created after crime was committed.

Jurors must be selected from citizens and

residents of district in which case is to be tried, and defendants were not entitled to have jurors selected from counties transferred to another district created after crime was committed. 3. Banks and banking 256(1)-Minute book is "book," and minutes of board meetings are "entry," within statute prohibiting false and fraudulent entry in books of banking association (12 USCA § 592).

Minute book of bank held to be "book," within Rev. St. § 5209 (12 USCA § 592), relative to offense of making false entries in books of banking association with intent to defraud, since such statute covers all books, entries in which are calculated to deceive Comptroller of Currency and officers of bank, and minutes of meetings, showing that committee had passed on loans, was "entry," within such section.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Book; Enter-Entry (in Practice).] 4. Banks and banking

256(1)-President

and vice president of bank having control and management are responsible for false reports to Comptroller of Treasury, regardless of whether sent by their explicit direction (12 USCA § 592).

President and vice president of bank are responsible for reports to Comptroller of Currency, sent and caused to be sent by them, with their knowledge, in prosecution under Rev. St. § 5209 (12 USCA § 592), for making such a report with intent to defraud, regardless of

whether reports were sent by their explicit direction in each case, where they had control and management of bank.

for accommodation of defendants under agreement that makers would not be liable thereon held admissible, as bearing on intent of defendants, especially where some of notes were specifically mentioned in indictment.

6. Indictment and information 71-Indictment for false entries in bank's minute book held to state tenor of entries with sufficient particularity as against demurrer (12 USCA § 592).

In prosecution, under Rev. St. § 5209 (12 USCA § 592), against bank officers for making false entries in minute book, indictment describing false entries by specifying by number the notes, which were the basis of the alleged fraudulent misappropriations, as having been approv ed by discount committee and board of directors, held, as against demurrer, to set out tenor of entries with sufficient particularity, especially in absence of request for bill of particulars. 7. Criminal law 1167 (2)-Where sentences ran concurrently after conviction on several counts, insufficiency of some of counts was Immaterial.

Where indictment, in prosecution under Rev. St. § 5209 (12 USCA § 592), for making false and fraudulent entries in minute book of bank, charged such offense in 37 counts, and sentences ran concurrently for conviction on 33 of such counts, failure of one or more of such counts to state charge with requisite particularity held immaterial, where description was sufficient in one.