or to one witness corroborated, it is sufficient. United States v. Wood, 39 U. S. (14 Pet.) 430, 10 L. Ed. 527. The strictness. required under the old rule has been relaxed, and convictions have been sustained upon the testimony of a single witness, corroborated by the circumstances proved by independent evidence sufficient to warrant the jury in saying that they believe one rather than the other. Hashagen v. United States, 169 Fed. 396, 94 C. C. A. 618. A conviction of perjury was sustained against a defendant in the state court, where he swore he did not remember certain material facts and the testimony showed that he did remember them. People v. Doody, 172 N. Y. 165, 64 N. E. 807. Disproving plaintiff in error's tale of a robbery as here shown was sufficient. The refusal to grant a new trial after the rendition of the verdict is not reviewable. Holmgren v. United States, 217 U. S. 509, 30 Sup. Ct. 588, 54 L. Ed. 861, 19 Ann. Cas. 778; Holt v. United States, 218 U. S. 245, 31 Sup. Ct. 2, 54 L. Ed. 1021, 20 Ann. Cas. 1138. Additional assignments of error were filed on April 7, 1921. The writ of error was allowed on February 9, 1921. The filing of assignments of error is a condition to the granting of the writ of error (rule 10, 235 Fed. vi, 148 C. C. A. vi), and errors not assigned according to the rule will be disregarded, unless a plain error is apparent. This rule should be adhered to. The practice is growing too frequent of assigning additional errors after the writ has been allowed. Judgment affirmed. IN THE MATTER OF THE BLUE RIDGE KNITTING COMPANY OF WASHINGTON COUNTY, BANKRUPT.* U. S. District Court, District of Maryland, December, 1922. PETITION AND PROCEEDINGS THEREON-FILING AND PRESENTING PETITIONEFFECT STATUS OF PROPERTY FIXED BY FIRST PETITION FILED ALTHOUGH ADJUDICATION ON SECOND PETITION. Where involuntary petitions are filed in two different districts and an adjudication is had in the district where last filed, and both proceedings 286 Fed. 684. were subsequently consolidated, the rights of the parties are determined by the date of the filing of the first petition. (See Collier, 13th Ed., p. 657; Am. B. R. Digest, § 236.) LIENS-LIENS THROUGH LEGAL PROCEedings—JugdMENT OR EXECUTIONEXECUTION LEVIED SUBSEQUENT TO FILING OF PETITION IN BANKRUPTCY. In Maryland, a judgment does not become a lien until execution ordered and therefore where execution was not ordered until less than two months before a petition in bankruptcy was filed no lien was obtained. (See Collier, 13th Ed., p. 1588; Am. B. R. Digest, § 463.) Order giving trustee in bankruptcy proceeds of property sold on execution. J. Purdon Wright and Robert H. McCawley, for trustee. ROSE, District Judge: On the 6th and 8th of June, 1921, judgments were obtained against the bankrupt corporation in the Circuit Court for Washington county, upon which on the 21st and 24th of September, respectively, execution was issued and levied upon certain personal property of the bankrupt. In the meanwhile, on the 16th of September, and before any lien of any kind had been obtained upon said property, an involuntary petition in bankruptcy was filed against the bankrupt in the Middle District of Pennsylvania, and on the 19th of November, 1921, a like petition was filed in this court, which resulted on February 10, 1922, in an adjudication in this court. The jurisdiction over the Pennsylvania case was, on the 25th of April, 1922, relinquished by the District Court for the Middle District of Pennsylvania, in order that the two cases might be consolidated in this district, which consolidation was made on the 2d of May, 1922. The sheriff sold the property upon which he levied, and the proceeds of $800 are now in his hands. It is claimed by the trustee in bankruptcy and the judgment creditors. The former is clearly entitled to it. The petition for adjudication in the Middle District of Pennsylvania was never dismissed. The cases were consolidated, and the rights of the parties are determined by the date of the filing of the petition in Pennsylvania. But even if this were not so, in Maryland, no lien is obtained upon personal property by the mere rendition of a judgment. Execu tion must be ordered upon the judgment, and such order was not given until less than two months before the petition in bankruptcy was filed in this district. UNITED STATES V. Henry A. EYGES.* U. S. District Court, District of Massachusetts, January, 1923. No. 2045. TRUSTEE-PERSONAL LIABILITY FOR FEDERAL INCOME TAX ASSESSED AGAINST BANKRUPT. Where a trustee has distributed the assets of the estate in accordance with the order of the court, he is not personally liable for the payment of the federal income tax assessed against the bankrupt, where such tax was not called to the court's attention and no order for its payment was made by the court. (See Collier, 13th Ed., p. 1448; Am. B. R. Digest, § 333.) Action by the United States to recover from a trustee in bankruptcy personally the amount of income tax assessed against the bankrupt. Motion to dismiss sustained and judgment rendered for defendant. Robert O. Harris, U. S. Attorney, for the complainant. Jacobs & Jacobs, for defendant. MORTON, District Judge: This is an action at law by the United States to recover from the defendant personally an income tax assessed against the Colonial Grocery Company, bankrupt, for the fiscal year ending June 30, 1917, together with interest and an additional assessment. The defendant has filed a "motion to dismiss," which is in effect a general demurrer. The facts alleged are as follows: Mr. Eyges was trustee in bankruptcy of the Colonial Grocery Company, which was adjudicated bankrupt, as the files of this *286 Fed. 683. court show, on July 15, 1921. At that time the tax in question was due and unpaid. The defendant, as trustee in bankruptcy, received money sufficient to pay the tax but did not do so. In addition to the allegations in the declaration, the parties agree that the government filed no claim in the bankruptcy proceedings, and did not call the matter to the trustee's attention; that no order relating to the tax was ever made by the bankruptcy court. The Bankruptcy Act provides that: "The court shall order the trustee to pay all taxes legally due and owing by the bankrupt to the United States in advance of the payment * * of dividends to creditors," etc. See section 64a (Comp. St. § 9618). Taxes are a first charge after the expenses of administration. The act explicitly says that the court shall order taxes paid, thus contemplating that the matter shall be brought before the bankruptcy court in order that it may be ascertained whether there are assets applicable to the tax and whether it is legal and correctly computed. See New Jersey v. Anderson, 203 U. S. 483, 492, 17 Am. B. R. 63, 27 Sup. Ct. 137, 51 L. Ed. 284. Where the tax is not brought to the trustee's or the court's attention, and he does not know of it, and no order is made for the payment of it, and he distributes the assets in accordance with the orders of the bankruptcy court, it would be plainly unjust and would be going beyond what the statute contemplated to hold that he is personally liable. No case has been called to my attention in which a trustee has been held liable on similar facts; and in U. S. v. Murphy (C. C.), 15 Fed. 589, it was expressly decided by Judge Gresham, under the act of 1867 (14 Stat. 517), that an assignee in bankruptcy was not liable. In Paine v. Archer (C. C. A., 9th Cir.), 37 Am. B. R. 454, 233 Fed. 259, 147 C. C. A. 265, it was assumed that a claim for taxes would be "brought to the attention of the court below." The present case is not to be confounded with a tax assessed against a trustee or an estate while in his hands, of which he is, of course, bound to take notice, nor with cases in which, with knowledge of the tax, the trustee failed to have assets reserved to meet it. The cases relied upon by the United States are, I think, distinguishable from U. S. v. Murphy on the grounds above suggested. Lewis, Trustee, v. U. S., 92 U. S. 618, 23 L. Ed. 513, was the case (as stated in the opinion) "of a trust fund, a trustee holding it, and a cestui que trust claiming it." Swayne, J., 92 U. S. 622, 23 L. Ed. 513. Demurrer sustained; judgment for the defendant. H. SILBERT, PLAINTIFF-APPELLEE, V. FRANK KETON ET ALS., DEFENDANTS-APPELLANTS.* Texas Court of Civil Appeals, February, 1923; Rehearing Denied March, 1923. OF LEASE A lease, although it contains a provision against its assignment, is not cancelled by the lessee's bankruptcy, and the lessee's trustee may adopt or reject it and if he adopts it he becomes an assignee and is liable for the rent. (See Collier, 13th Ed., p. 1741; Am. B. R. Digest, § 583.) Appeal by defendant named from judgment of the District Court, McLennan county. Reversed and remanded. Alva Bryan and W. L. Eason, for appellant. Spell, Naman & Penland, for appellees. BLAIR, J.: This suit was instituted by H. Silbert against George, Paul, and Gus Costas, for rents eo nomine, and against Frank Keton, as guarantor of the Costases, in the payment of such rents, as per contract. A trial was had in the court below before a jury, and upon an instructed verdict, except as to the amount due as rents, the jury returned into court a verdict for appellee Silbert, allowing him the sum of $397.45. Appellee Silbert brought the suit for rents as such, and appellant contends that by reason of placing John Maxwell, trustee in bankruptcy of the estate of Costas Bros., in possession of the * 250 S. W. 316. |