Volume 287 — Federal Reporter

William C. Petersen was convicted of unlawfully using motley order funds in a manner not authorized by law, and he brings error.

<p>1. Prostitution <®=»l — Immoral purpose must have been formed before state line is crossed.</p> <p>Since Maun White Slave Traffic Act June 25, 1910 (Comp. St. §§ 8812-8819), is valid only under the commerce danse of the national Constitution (article 1, § 8, cl. 3), there must, in order to constitute the offense charged, be substantial evidence that the intention to transport the woman for immoral purposes was formed by the parties before they reached the foreign state to which she was transported, since the immoral act itself is exclusively within the jurisdiction of the police power of the state1 where it was. committed.</p> <p>2. Criminal law ©=»l 144(13) — 'Testimony of prosecution is accorded strongest probative effect on review of ruling on motion to direct verdict.</p> <p>On review of the denial of a motion by accused for a directed verdict, the Circuit Court of Appeals must give the testimony of the prosecution its strongest probative effect, and, if there is any substantial testimony which will warrant a verdict of guilty, the denial of the motion is not cause for reversal.</p> <p>3. Prostitution <$=»4— Evidence held not to show immoral purpose was formed before state line was crossed.</p> <p>Evidence that accused offered to take a woman, with whom he had previously had illicit intercourse within the state, to visit her sister in another state, where she desired to obtain employment, held insufficient to show an intention to transport her for an immoral purpose, though after their arrival in the other state, and a quarrel with her sister, they indulged in intercourse.</p> <p><©=>For other cases see sacie topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

• Cross Writs of Error to the District Court of the United States for the Eastern District of South Carolina, at Charleston; Henry A. Middleton Smith, Judge. Action by W. R. Grace & Co., a corporation, against D. Wallace Moore. Judgment for plaintiff for $14,928.30, and both parties bring error.

Booth, Judge. Action by Andrew J. Eockhart and another, doing business as the Eockhart Eand & Eoan Company against M. B. Burke. Judgment for plaintiffs, and defendant brings error.

<p>At Raw. Action by the Foss-Hughes Company against Ephraim Rederer, Collector of Internal Revenue, First District of Pennsylvania.</p>

<p>In Admiralty. Libel by the United States against the schooner Santa Luzia.</p>

<p>1. Courts <@=522 — Court of ancillary receivership held fo have jurisdiction of intervention by creditor.</p> <p>Where creditors’ bill was filed in New York federal court against brokers having their principal place of business there, and receivers were appointed, and ancillary receivership in the federal court in Georgia was asked and granted, and a receivership proceeding against the brokers in the Georgia state court was removed to tlie federal court and consolidated, held, that the Georgia federal court had jurisdiction of an intervention by a creditor of the brokers, who claimed that he had given them a check to use in buying stocks, which was deposited to the brokers’ credit in a national bank in Georgia, and that the brokers failed without buying the stock, iwhereuppn the bank offset certain notes it held against the brokers against the deposit, absorbing it, and who asked that the bank be made a party and be required to pay the amount • of his check to the receivers or to such creditor; such dependent controversies being entertained in the federal court, though, standing alone, jurisdiction would not have been exercised over them, only from the necessity for entertaining them in order to execute fully and correctly the original jurisdiction.</p> <p>2. Courts <@=522 — Intervention would be decided by court of ancillary receivership.</p> <p>Where New York brokers failed, and main receivership was in New York federal court, and an intervention was filed in ancillary receivership proceedings in the federal court in Georgia by a creditor of the brokers, who claimed that ha had given them a cheek to use in buying stocks, which was .deposited to the brokers’ credit in a national bank in Georgia, pnd that the brokers failed without buying the stock, whereupon the bank offset certain notes it held against the brokers against the deposit, absorbing it, and who asked that the bank be made a party, and be required to pay the amount of his check to the receivers or to such creditor, held, that the federal court in Georgia would pass on the controversy, and not remand the parties to the primary jurisdiction in New York, as the right sought to be asserted by intervener was a special equity attaching, not to the general estate, but to a particular asset, that is, the deposit in the Georgia national bank, but that the Georgia federal court would not undertake to decree a general lien on the estate of the insolvents, or fix any priority therein.</p> <p>3. Banks and banking <@=I34(6) — Bank may not set off notes against account of insolvent broker, where no new credit given, and account is trust money.</p> <p>Where check of customer of brokers was given to them to buy stock for the customer, and was deposited by them in their bank, and they failed before buying the stock, held, that the bank could not, by virtue of its contract or ^otherwise, set off, against the portion of the deposit which represented the check, notes held by it against the brokers, where, although it had no notice of the customer’s equity in the deposit, no extension of credit to the brokers or other change of position by the bank occurred by reason of such deposit of the customer’s check to give the bank any equity in respect thereto, and that therefore the bank should surrender the amount of the cheek to the brokers’ receiver, and they in turn should surrender it to the customer.</p> <p><@=For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Bankruptcy <©=>397 — Individual partners may claim exemptions out of partnership property, where ail partners consent.</p> <p>Under Bankruptcy Act, §§ 6, 47a (11), (Comp. St. §§ 9590, 9631), and General Order No. XVII (89 Fed. viii, 32 C. C. A. viii), as to exemptions, where a partnership and individual partners were adjudged bankrupt, and in their individual schedules each of said bankrupts claimed their homestead and personal property exemptions as provided by Const. N. C. art. 10, and statutes, and each of the partners filed their written consent that any partner should have the privilege of claiming exemptions out of the partnership property, an order by the referee directing the bankruptcy trustee to set apart to each of said partners property from their individual estate to the value of their exemptions, and that if any of the partners had not sufficient property to give him such exemptions that- the deficiency be made up by the trustee out of the partnership property, held proper, notwithstanding section 5 of Bankruptcy Act (Comp. St. § 9589), and although the exemptions might absorb the entire estate, individual and partnership.</p> <p>2. Bankuptcy <©=>397 — Where a partner objects, another partner not allowed ex- ■ emptions out Of partnership property.</p> <p>Where a partnership and one partner were adjudged bankrupt, but two other partners were not, the bankrupt partner would not be allowed his exemptions under Const. N. C. art. 10, and statutes, where the other partners objected. i</p> <p><©=>For other cases see same topic & KEY-NUMBER in -all Key-Numbered’ Digests & Indexes</p>

At Paw. Separate actions by the Norfolk & Western Railway Company against the Emmons Coal Mining Company and another and against Weston Dodson & Co. and another. On affidavits of defense raising questions of law.

<p>In Equity. Suit by the El Paso & Southwestern Company and others against J. M. Riddle.</p>

<p>1. Constitutional law <§=» 12 — Provisions not extended to include what is not expressed or necessarily implied.</p> <p>Though the Constitution is conclusive so far as it goes, its language cannot be extended to include something which it has not expressed, either directly or by necessary implication.</p> <p>2. Searches and seizures <S=>7 — Constitution does not prevent search of stable.</p> <p>Const. Amend. 4, protecting the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches, does not prohibit a search of all premises, but is limited to houses, so that it is not violated by a search of a stable belonging to defendant.</p> <p>3. Searches and seizures <S=»7— Reasonableness of search does not depend altogether on possession of warrant.</p> <p>The Constitution prohibits unreasonable search and seizure, not search without a warrant, and the reasonableness of a search does not altogether depend on the possession by the searcher of a search warrant, since a search under a warrant may be unreasonable, and one without a warrant my be reasonable.</p> <p>4. Searches and seizures @=»3 — 'Warrant is necessary only if offense has been completed.</p> <p>It is necessary to obtain a warrant before the search only if the alleged offense has been completed, so that an affidavit for the warrant may show the probability of the commission of the offense.</p> <p>5. Searches and seizures <3=»3 — Property forfeited to government can be seized without warrant.</p> <p>Though property which belongs to defendant, but which may be used as evidence against him, cannot be seized without a proper search warrant authorizing its seizure, an officer may seize without warrant property in possession of defendant, and which has, under the law, been forfeited to the government.</p> <p>6. Searches and seizures <©=>3 — Officer can search and seize without warrant, if he reasonably believes offense is being committed.</p> <p>Const. Amend. 4, providing that no warrant shall issue, except on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the person or things to be seized, contemplates that a crime has been committed, and, if an officer has reason to believe that an offense is being committed, he may search without having a .warrant, just as he may arrest without a warrant when an offense has been committed in his presence.</p> <p><§r»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Shipping <§=>132(5) — Facts held to show skins were damaged by sea water.</p> <p>On libel against a skip for damages to a shipment of lambskins, evidence that the damage could have been caused only by sea water or by improper dressing, and that all the damaged skins in each bale were to-‘ gether on one side of the bale, sufficiently shows that the damage resulted from sea water.</p> <p>2. Shipping <§=>132(5)— Recital goods were received in apparent good order is prima facie proof there were no exterior signs of damage.</p> <p>A recital in the bill of lading that the goods were received on board ship in apparent good order and condition makes a prima facie case on behalf of shipper that there were no exterior signs of damage when the goods were delivered to the vessel.</p> <p><§=?For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>3. Shipping <3=» 132 (3) — Burden of proving receipt by ship in good order does not shift from shipper.</p> <p>A recital in the bill of lading that goods were received in apparent good order merely creates a presumption in favor of the shipper, and does not shift from him the burden of proof that the damage occurred on board the ship.</p> <p>4. Shipping 106 — Recital of receipt in apparent good order does not admit burlap covering was unstained.</p> <p>Where it was customary to use secondhand burlap for wrapping bales of lambskins, and such covering was frequently stained before use, a recital in the bill of lading that lambskins wrapped in burlap were received in apparent good order and condition was not an admission that there were no stains on the burlap.</p> <p>5. Shipping <§=»I32(5) — Evidence held to show damage hy sea water was not caused on board ship.</p> <p>Evidence that bales of lambskins had been stored in a pile in the same hold, and that a few skins on one side of each bale were damaged by sea water on arrival at destination shows that the damage was not received on board the ship, in which event all of the skins in the outside bales would have been damaged before any of those in the bales on the inside of the pile, whereas the damage which appeared might easily have resulted while the skins were being transported to the ship in lighters.</p> <p><©cs>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Trade-marks and trade-names and unfair competition <@=»9 — “Budweiser,” though geographical in origin, protected as trade-mark.</p> <p>“Budweiser,” forming part of complainant’s trade-mark for beer and malt liquors, though geographical in'origin, is nevertheless entitled to protection where used to lawfully designate complainant’s product until it became known to the trade by that designation, agaiñst injury by acts” of defendants which create dishonest competition.</p> <p>2. Trade-marks and trade-names and unfair competition, <§=>S3(3)^Use by others insufficient to show abandonment of trade-mjark,</p> <p>Under the rule that to establish abandonment of a trade-mark it is necessary to show not only 'acts indicating a practical abandonment, but an aetuál intent to abandon, evidence of the use by others of the term “Budweiser” held insufficient to show abandonment by complainant of the name “Budweiser” as part of its trade-mark for beer and malt liquors.</p> <p>3. Trade-marks and trade-names and unfair competitioji <f~?§6 — Complainant making prompt objection to infringement of trade-name not guilty of laches npr estopped from claiming protection'; “ ■ .</p> <p>Where complainant filed its application for the registration of Budweiser as á trade-mark for malt syrup in the month following that in which defendant began to market its “Budweiser' Malt Syrup,” and a month later made specific objection to defendant’s use of the name “Budweiser,” complainant was not barred by estoppel or lacbes to seek protection for such name long used by it as part of its trade-mark for beer and malt liquors. '</p> <p><S=»For other eases see same topic &KEY-NUMBER in'all Key-Numbered Digests & Indexes</p> <p>4. Trade-marks and trade-names and unfair competition <®=»68 — “Budweiser” as name for malt syrup suggesting' by-product of complainant’s manufacture unfair, and proof of inferiority not necessary.</p> <p>Where complainant by long use and extensive advertising had created a market for its products under the trade-name “Budweiser” to characterize its beer and malt liquors, a manufacturer of malt syrup cannot justify the use of the name “Budweiser Malt Syrup” on the ground that beer is not a malt product, since the name itself suggests that the product is a by-product of complainant’s manufacture, and it is not necessary for complainant to prove defendant’s product actually inferior to protect itself from misuse of its name and good will.</p> <p>5. Trade-marks and trade-names and unfair competition <á=»68 — Deception is gist of unfair competition.</p> <p>The fundamental question in cases of unfair competition is whether the public is being misled and deceived, so that a defendant is in effect taking advantage of the good will and business reputation that a complainant has built up through lawful and proper means.</p> <p>@s»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In Admiralty. Cross-libels for collision by the Saint Line,Limited, owner of the steamship St. Michael, against the steamship Adriatic, and by the Oceanic Steam Navigation Company, Limited, owner of the steamship Adriatic, against the steamship St. Michael.

<p>Courts <§=>276 — Right to be sued in district of residence not waived by appoint ment of agent for service in district where suit was brought.</p> <p>Though the provision of Judicial Code, § 51 (Comp. St. § 1033), that no civil suit shall be brought in any other district than where defendant is an inhabitant, can be waived, a corporation does not waive its right to be sued in the district containing the state of its organization by designating an agent on whom process may he served in the district in which the suit was subsequently brought, as required by the statute of that state to entitle the corporation to do business therein.</p> <p><§ss>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Tuttle, Judge. Suit in equity for infringement of a patent by Jacques Rousso against the First National Bank of Detroit and another. From an order denying a motion for preliminary injunction, plaintiff appeals.

<p>In Error to the District Court of the United States for the Western District of North Carolina, at Charlotte; James E. Boyd, Judge.,</p> <p>Action at law by the Frank F. Pels Company against the Saxony Spinning Company. Judgment for defendant, and plaintiff brings error.</p>

Libel by the Trafikaktiedolaget Grangesberg Oxelosund, a corporation existing under the laws of the Kingdom of Sweden, against the Ainesworth Coal & Iron Company, a corporation, to recover for an alleged breach of a charter party for a steamship From a decree deciding for libelant on the merits (273 Fed. 215), and a subsequent decree fixing the amount of damages (281 Fed. 231), respondent appeals.

<p>1. Telegraphs and telephones <@=67 (I) — Liability for nondelivery of telegram restricted to losses reasonably anticipated.</p> <p>In an action for nondelivery of a telegram, liability for negligence, not wanton, willful, or malicious, is restricted to compensation for such losses and injuries as should reasonably have been foreseen by an ordinarily prudent person as the natural and probable consequence of such negligence, in the light of the attending circumstances.</p> <p>2. Telegraphs and telephomes <@=70 (I) — Failure to deliver message transmitting money renders company liable for cost of transmission and interest on money.</p> <p>A telegraph company, failing to deliver a message transmitting money, is liable for the fee paid for transmitting the message and for interest on the money deposited for transmission, until repaid.</p> <p>,3. Telegraphs and telephones <@=68(1) — Damages for mental suffering alone, or accompanied by pecuniary loss, not recoverable for failure to deliver message transmitting money.</p> <p>Damages for mental anguish, either alone or accompanied by pecuniary loss, by reason of nondelivery of telegram transmitting funds, ' is not recoverable in the federal courts.</p> <p>4. Telegraphs and telephones <©=73(l) — Whether telegram was notice to company of indirect and consequential damage held a jury question.</p> <p>Whether a telegram transmitting money to plaintiff, addressed to defendant at Union Station in Kansas City, was notice to the telegraph company that failure to deliver such message would result in indirect and consequential injury to the addressee, held a question for the jury.</p> <p>5. Trial <@=142 — Undisputed fact from which different inferences may' reasonably be drawn, presents jury question.</p> <p>Where impartial and intelligent men can. reasonably draw different inferences from an undisputed fact, a jury question is presented.</p> <p>6. Principal and agent <@= 178(1)— Notice to agent not connected with transaction not notice to principal.</p> <p>Notice to an agent, who is under no duty to transmit the information to his principal or to other agents, and who has no connection with the transaction to which the notice relates, is not notice to the principal.</p> <p><@=For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>7. Telegraphs and telephones <§=67(2) — Telegram requesting funds not notice to company justifying recovery of special damages for nondelivery of message transmitting funds.</p> <p>In an action for nondelivery of a money transfer message in which plaintiff sought recovery for hardships and suffering undergone by him in making his way home on railroad train without paying fare, held, that his telegraphic request for funds did not put the defendant telegraph company on notice, so as to authorize the recovery of special damages suffered. 6</p> <p>8. Trial <§=191 (6) — Instructions assuming notice to telegraph company of consequential damages error.</p> <p>In an action for nondelivery) of telegram, instructions assuming that the defendant had. been put on notice, by plaintiff’s telegram requesting funds, that he was without funds, and that the purpose of a money transfer message in answer thereto was to supply him with funds indispensably necessary to- procure his transportation home, was prejudicial error, as not submitting to the jury for determination the question whether the defendant had notice, rendering it liable for consequential damages.</p> <p>9. Appeal and error <§=2I5(1) — Failure to object to instructions precludes review.</p> <p>Where no exception was taken to the charge, error therein is not ground for reversal, nor can the trial court’s refusal to set aside the verdict, and its failure to require remission of a greater part of the verdict than as ordered, be reviewed.</p> <p>10. Appeal and error <§=1056(1) — Telegraphs and- telephones <§=66(3), 67(5)— Damages for hardships incurred by plaintiff in beating his way not recoverable in action for failure to deliver message transmitting funds, and admission of evidence thereof is prejudicial error.</p> <p>Damages suffered by a traveler for failure to deliver to him a telegram transmitting funds, by reason of his attempting to make his way home by stealing rides on railroad trains, are not recoverable as the natural and probable result of failure to receive funds transmitted, and evidence of inconvenience, suffering, and hardship undergone by plaintiff in making his way home is inadmissible, and the admission of such testimony to show that plaintiff minimized losses and injuries suffered at defendant’s hands was prejudicial.</p> <p>11. Telegraphs and telephones <§=74(5) — Failure to properly instruct on consequential damages reversible error.</p> <p>Refusal to instruct the jury that plaintiff is not entitled to recover from a telegraph company any damages for inconvenience or injuries incurred in his effort to get home on railroad trains without paying his fare, as the result of nondelivery of a money telegram, held reversible error.</p> <p><gs»For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Courts <@=>352 — Cause “at issue” on filing of answer.</p> <p>A cause is at issue, within the meaning of equity rules 47 and 56 (198 Fed. xxxi. xxxiv, 115 C. C. A. xxxi, xxxiv), when the answer is filed, and the subsequent filing of an amended answer does not of its own force operate to extend the time for hearing.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, At issue.]</p> <p>2. Acknowledgment <@=>6 (2) — Defective acknowledgment held not to render deed void.</p> <p>A deed to land in Ohio, made in 1835, was signed by two men and their wives, and duly witnessed and recorded, but the name of one of the men did not appear in the acknowledgment. Such signer lived for 30 years thereafter, but there is no competent evidence that he ever questioned the validity of the deed, though grantees were in possession. Held that, under Gen. Code Ohio, § 8558, the record of the deed was admissible in evidence, and it was valid, at least as a contract to convey, as against heirs of such grantor.</p> <p>3. Specific performance <@=>105(3) — Vendees in possession not chargeable with laches.</p> <p>Vendees under a defective deed, or their successors, who are in undisputed possession, are not chargeable with laches, which will bar a suit for specific performance of the contract to convey, and especially in view of Gen. Code Ohio, § 11236, expressly so providing.</p> <p>4. Equity <@=>72(4) — Suit to recover interest in land barred by laches.</p> <p>Delay by complainant, for more than 45 years after attaining her majority before asserting her claim to an interest in land as heir of her father, held such laches as to bar a suit for its recovery, where during the greater part of the time defendant and its predecessors in interest had been in possession under claim of title, and had expended large sums in improvements.</p> <p>5. Courts <§=>375 — Laches may be defense in federal courts, regardless of state statute of limitations.</p> <p>The federal courts enforce the doctrine of laches when, the lapse of time has been shorter than that prescribed by state laws, where the peculiar circumstances give rise to an equity which the court is bound to protect.</p> <p><@=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Western • District of South Carolina, at Greenville; Henry H. Watkins, Judge.</p> <p>Criminal proceedings against Katie Singleton for violation of the National Prohibition Act. From an adverse judgment, defendant brings error.</p>

In Bankruptcy.. In the matter of the Market Warehouse Company, alleged bankrupt. On report and petition of receiver and motion to confirm referee’s report on adjudication. Compensation allowed to receiver, his attorney, and appraisers, also to be paid by petitioners.

<p>In Admiralty. Libel by the Pennsylvania ■ & Delaware Oil Company against the Director General of Railroads for damage claimed to have been caused by the tug Wyomissing.</p>

<p>Petition of Kwock Seu Lum for writ of habeas corpus.</p>

<p>At Law. Action by M. Borovitz, administrator of the estate of Pete Butorac, deceased, against the American Hard Rubber Company. On defendant’s demurrer to the petition.</p>

In Equity. Suit by the National Paint Removing Company of Washington against Harry R. Cochran, B. G. Eaton, and Harry L. Maynard, doing business as the Modern Paint Removing Company, for infringement of a patent. On motion for a preliminary injunction.

<p>I. Intoxicating liquors <§=»248 — Evidence held to show probable cause for Issuance of search warrant.</p> <p>Evidence lawfully obtained that one holding a wholesale permit to sell certain described liquors at his place of business later had less than such quantity at such place, with no valid permits to purchasers on file, but a number of forged permits, and that he had not made the requisite returns of sales, held sufficient to show probable cause and to authorize issuance of a search warrant.</p> <p>t§=»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>2. Intoxicating liquors <3=247— Holder of permit not exempt from search.</p> <p>Possession of a valid permit to possess and sell liquor does not exempt the holder from search and seizure of liquor in his possession, where there is ample evidence that the permit is used as a cloak for unlawful sales, on forged ancL fictitious permits to purchase, and that he has not made the returns of sales required by law.</p> <p>3. Intoxicating liquors <3=5248 — Information obtained through inspection lawfully acquired.</p> <p>Information acquired by an internal revenue officer on lawful inspection of the premises of. the holder of a permit to sell liquors is lawfully obtained, and may be made the basis of a search warrant.</p> <p>4. Intoxicating liquors <3=249 — Under lawful search warrant for liquor, incriminating papers may be seized.</p> <p>Under a search warrant for liquors, lawfully issued under Prohibition Act, tit. II, § 25, forged and fictitious permits found on the premises, and apparently used in unlawful sale of liquor, may properly he seized and used as evidence of such unlawful sales.</p> <p>.«©c^For other cases see same topic & KEX-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Public service commissions <3=7 — Approval of changes in rates.</p> <p>Under Pub. Acts Tenn. 1919, c. 49, § 5 (d), whenever a public utility increases its rates, such increase may be suspended by the commission lor a hearing and determination of its reasonableness, and if, upon such hearing and determination, such increase is approved by the commission it becomes effective, if disapproved, ineffective; but if the commission fails either to suspend such increase, or to hear and determine as to its reasonableness within the times prescribed, such increase thereupon becomes effective, subject, however, to the right of the commission at any time to prescribe reasonable rates after notice and hearing as provided by section 4 (c).</p> <p>2. Public service commissions <8=7 — Approval of part of increasei sought.</p> <p>Under Pub. Acts Tenn. 1919, c. 49, the determination by the Public Utilities Commission as to the reasonableness of an increase in rates involves not merely an approval or disapproval in its entirety, but the exent, if any, to which it may be approved.</p> <p>3. Public service commissions <8=19(1) — Suspension of rates suspends intermediate increase.</p> <p>Under Pub. Acts Tenn. 1919, c. 49, the suspension of increased rates by the Public Utilities Commission pending the hearing and determination suspends every intermediate increase involved' therein, and requires the utility meanwhile to keep the previous rate in force, even without any express order of the commission to that effect.</p> <p>4. Public service commissions <8=7 — Suspension of increase of rates? “upon.”</p> <p>The word “upon,” in Pub. Acts Tenn. 1919, c. 49, § 5 (d), appearing in the phrase ‘‘upon such hearing and determination” in the third sentence, is used in the sense of “pending,” and when any public utility increases its rates, the commission may, either on written complaint or its own initiative, hear and determine whether such increase is just and reasonable, and pending such hearing and determination the commission may suspend such increase for not exceeding three months, and if its investigation cannot be completed within such three months, may extend such extension for such further time as will reasonably enable it to complete its investigation.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, On — Upon.]</p> <p>5. Public service commissions <3=7 — Suspension on notice of increased rates.</p> <p>Under Pub. Acts Tenn. 1919, c. 49, § 5 (d), when a public utility gives notice of increased rates to become effective thirty days thereafter, such rates will become effective at the expiration of such 30 days,unless the commission' meanwhile shall have suspended such increase pending a hearing and determination, for not exceeding three months after their effective date, and they will thereafter become effective at the expiration of such suspension, unless the commission meanwhile has commenced its investigation, and, finding that such investigation cannot be completed within such time, has extended the suspension for such further time as will reasonably enable it to complete the investigation.</p> <p>6. Public service commissions <3=2 — Validity of act as to suspension of increase of rates.</p> <p>Pub. Acts Tenn. 1919, c. 49, § 5 (d), permitting Public Utilities Commission to suspend increase of rates pending investigation is valid.</p> <p><@^>Por other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>7. Public service commissions <3=19(1) — Order suspending rates pending investigation held in part valid.</p> <p>Under Pub. Acts Tenn. 1919, c. 49, § 5 (d), an order of tbe Public Utilities Commission, suspending increased rates for an indefinite period until tbe commission should. determine! tbe matter, was invalid in so far as it suspended tbe rates for an indefinite period that might continue more than three months after the effective date of the increased rates, but was valid in so fat as it suspended the increased rates for such three months period.</p> <p>8. Public service commissions <3=11 — 'Public utility not required to pay- expense of appraisal.</p> <p>The Public Utilities Commission of Tennessee cannot require a public utility to pay the expense of. appraisal and audit on application for increased rates, under Pub. Acts Tenn. 1919, c. 49, § 4 (b), in view of Pub. Acts Tenn. 1921, c. 107, § 6.</p> <p>9. Public service commissions <3=21 — Order suspending increased rates not interfered with by injunction.</p> <p>Where existing rates claimed by a public utility to be confiscatory have not been imposed on it by any act of the Public Utilities Commission of Tennessee, but were voluntarily established by the utility itself with the approval of the commission, and the utility gives notice of an increase in rates, enforcement of an order of the commission suspending the increased rate pending a reasonable period of investigation will not be enjoined, on the ground that the existing rates are confiscatory.</p> <p><®E5>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Petition by the Collector of Internal Revenue, on behalf of the United States, against G. H. Koller and another, to compel respondents to produce for examination their books and records.

<p>1. Shipping @=>39 — 'Vessel chartered for full cargo is not common carrier, but bailee for transportation.</p> <p>A vessel chartered to carry a cargo of oil is not a common carrier, but a bailee for transportation. '</p> <p>2. Shipping @=>42, 121 — Carrier by sea under implied warranty to furnish seaworthy vessel.</p> <p>All shipowners carrying goods by sea, whether common carriers or bailees for transportation, are under an absolute warranty, implied by law, to furnish a vessel seaworthy at the beginning of the voyage.</p> <p>3. Shipping @=>42 — Charter party held to exempt private carrier from liability for leakage.</p> <p>In a charter of a tank steamer as bailee for transportation of a cargo of oil, containing a general warranty of seaworthiness during the. voyage, perils of the sea excepted, a further clause, that “the steamer is not to be accountable for leakage,” held to modify the general warranty and to relieve the vessel from liability for leakage, whether or not caused by negligence.</p> <p>cgr^Eor other cases see same topic & KEY-NUMBER, in all Key-Numbfered Digests & Indexes</p>

<p>Seaman <@=»29(5) — Jurisdiction of act'on for injuries to mess boy on dock.</p> <p>Where mate wrongfully sent mess boy on the wharf to assist in unloading, where he was injured, the court had no jurisdiction of a suit instituted under Merchant Marine Act 1920, § 33, amending Act March 4, 1915, § 20, providing that any seaman who shall suffer personal injury in the course of his employment may at his election maintain an action for damages at law; no intention being shown by section 33 to include in the new remedy any cases in so far as territorial jurisdiction is concerned, not covered by the old.</p> <p><§=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Petition to Revise and Appeal from the 'District Court of the United States for the Eastern District of Tennessee; Edward T. Sanford, Judge.</p> <p>In the matter of the Tennessee River Coal Company, bankrupt. Petition by Carter Eynch, as trustee in bankruptcy, against A. E. Roberson, to require the respondent to surrender to the trustee assets held by him as receiver appointed by the state chancery court for the Tennessee River Railroad Company. Petition dismissed without prejudice ,to a plenary suit, and the trustee appeals and petitions to revise.</p> <p>On May 27,1921, a petition was filed in the bankruptcy court by the trustee of the Tennessee Eiver Coal Company (which had been adjudged bankrupt February 6, 1912); the present trustee having been appointed upon the reopening of the bankrupt estate in 1921 (the estate had been closed and the trustee discharged July 30, 1914), asking that the receiver of the property and assets of the Tennessee Eiver Eailroad Company, appointed as such February 20, 1912, by an order of a chancery court of the state of Tennessee, in a general creditors’ suit pending in the state court, be required to surrender to the trustee in bankruptcy for administration in the bankruptcy court the funds held by the chancery receiver by virtue of that receivership as assets of the Tennessee Eiver Eailroad Company; upon the ground that the same were the property of the bankrupt estate. The receiver denied the jurisdiction of the referee under the petition, and moved to dismiss the same, for the reason that the .receiver was an adverse claimant to the funds described therein, and that his right to the same could be determined only in a plenary suit. The referee denied the trustee’s petition, on the ground that the trustee’s claims to the property in the possession of the state court receiver could be determined only in a plenary suit, and (or the further reason that the trustee’s claim, if any, had been barred by the two-year limitation prescribed by section lid of the Bankruptcy Act (Comp. St. § 9595). The District Judge modified the order of dismissal, by resting the same solely upon lack of jurisdiction to proceed summarily to determine the merits of the controversy involved, and upon the holding that the receiver’s claim of adverse possession of the property was real, and not merely colorable — the order of dismissal being without prejudice to the right of the trustee, if he has any, to thereafter proceed by plenary suit in any court having jurisdiction of the controversy presented. The case is brought here both by appeal and by petition to revise.</p> <p>The opinion of District Judge (now Mr. Justice) Sanford is as follows:</p> <p>On February 6, 1912, the Tennessee Eiver Coal Co. was adjudged bankrupt o.n its voluntary petition. Certain assets were administered, the trustee discharged and the estate closed in 1913.</p> <p>In March, 1921, upon a petition of creditors alleging that the estate had been closed before being fully administered, it was reopened for the purpose of administering upon other assets, if any, and the cause re-referred to the referee.</p> <p>Upon such re-reference a new trustee was appointed, who thereafter filed a petition in the case, praying, in effect, a summary order on the receiver in the case of J. B. Wynne et al. v. Tennessee River Railroad Co., pending in the Chancery Court of Marion County, Tennessee, for the surrender of a fund " held by him as such receiver arising from the proceeds of property sold therein as the property of said Railroad Company, but alleged in the petition, in substance, to have been the property of the bankrupt.</p> <p>Notice having been served on said receiver requiring him to make defense to the petition, he appeared specially and moved to dismiss the petition on the ground that being an adverse claimant to said fund his right thereto could only be determined in a plenary suit, over which the referee would have no jurisdiction; and without waiving this objection, filed his answer in which he again denied the jurisdiction of the referee, and asserted his claim to this fund as one arising from the sale of property belonging to the Railroad Company, and not to the bankrupt, as well as relying upon laches and the statute of limitations of two years- prescribed by section lid of the Bankruptcy Act as to the bringing of suits by trustees in bankruptcy. An amended petition and answer thereto, again denying jurisdiction, having been filed, the matter was heard by the referee on pleadings and proof, and an order made by him on March 6, 1922, adjudging, among other things, that if the trustee had any right of action against the receiver, it could only be asserted in a plenary suit, which would now be barred by said statute of limitations and thereupon disallowing and dismissing the trustee’s petition. This is the order which the trustee now seeks to review.</p> <p>None of the property in question, which consisted of steel rails, frogs, switches, etc., was scheduled by the bankrupt as its property; none ever came into the actual possession of the bankruptcy court or of any of its officers; and none was administered by the former trustee.</p> <p>And on February 19, 1912, thirteen days after the adjudication of the Coal Company in bankruptcy, the bill was filed in the Chancery Court in the above mentioned case of Wynne et al. v. Tennessee River Railroad Co. This was a general creditors’ bill against the Railroad Company, to which neither the Coal Company nor the trustee in bankruptcy were parties, and sought the administration of the assets of the Railroad Company for the benefit of its creditors. A receiver was appointed in said chancery cause on February 20, 1912, who took possession of said property as part of the property of the Railroad Company, since which time it was continuously in possession of the receiver and held by him as the property of the Railroad Company until sold for the purpose of administering the assets in said chancery cause, for which purpose its proceeds are now held by the receiver, subject to the orders of the Chancery Court.</p> <p>It is the theory of the trustee that said Railroad Company was and is not now a legally organized corporation but merely a corporate shell, chartered by the Coal Company, for its own benefit, as a subsidiary corporation and agency for the purpose of constructing a railroad to its coal properties, entirely financed by it and having in fact no separate legal corporate existence, and that the property in question was in substance and in fact the property of the Coal Company, bought with its money, and either never transferred to the Railroad Company or held by it as agent for the Coal Company and hence to be administered as part of its assets.</p> <p>On the other hand, it is the theory of the receiver that, while the Railroad Company may have been chartered at the instance of the Coal Company, it was legally organized and acted as a separate legal entity, and that in such capacity it acquired the property in question, and contracted various debts to creditors for whose benefit its assets are properly to be administered in the chancery cause.</p> <p>It is well settled that where property claimed by the trustee as part of the bankrupt estate is in the possession of a third person, claiming adversely title thereto or an interest therein, summary proceedings for its recovery will not lie in the bankruptcy court, but such a controversy is presented that resort must be had by the trustee to a plenary suit in a court in which it might have been prosecuted if the proceedings in bankruptcy had not been instituted. Bankruptcy Act, § 23 (Comp. St. § 9607); I Lovel. Bankc’y (4th Ed.) § 36, p. 122, and cas. cit. note 64; Id. § 37, p. 124, and cas. cit. note 69; 1 Fed. Stat. Ann. (2d. Ed.) 761, and cas. cit. in note on “Jurisdiction of Adverse Claims”; 2 Rem. Bankc’y (2d Ed.) § 796, p. 1668, and cas. cit., note 2, p. 1669.</p> <p>If the property is tangible, the determination of the question as to who has possession or control of it determines the forum to which the parties must resort to work out their rights, and the manner of procedure as to whether summary or plenary. 2 Rem. Bankc’y (2d Ed.) § 796, p. 1668. If the possession, actual or constructive, is in the bankrupt, or in his agent, or some one not claiming a beneficial interest therein, or of an officer of the court of bankruptcy, that court has summary jurisdiction over it by order made in the bankruptcy proceeding; but, if, on the other hand, a third party claiming a beneficial interest in the property, has possession, then the trustee cannot bring him into* the proceedings, and he is entitled to- be heard in plenary action. This rule is in accordance with Looschen Land Co. v. Milson (C. C. A. 3d Circ.) 266 Fed. 359, in which it was held that a court of bankruptcy was without summary jurisdiction to determine that the property of a second corporation was the property of the bankrupt corporation and to order such property turned over to the trustee in bankruptcy over the objection of the second corporation. And in so far as the doctrine of In re Eilers’ Music House (C. C. A. 9th Circ.) 270 Fed. 915, in which Ross, Circuit Judge, dissented on the specific' authority of the Looschen Case, may be in conflict therewith, I am of opinion that the Looschen Case is based on the sounder reasoning and should be followed.</p> <p>I do not find that this rule is in conflict with Babbitt v. Dutcher, 216 U. S. 102, 30 Sup. Ct. 372, 54 L. Ed. 402, 17 Ann. Cas. 969. There the only question was whether summary proceedings would lie to obtain possession of the books and records of the bankrupt corporation in the custody of its officers asserting no adverse claim thereto: and I do not think that the language used on page 113 of 216 U. S., 30 Sup. Ct. 377 (54 L. Ed. 402, 17 Ann. Cas. 969), distinguishing between the one class of cases where there is an adverse claim based upon a transfer antedating the bankruptcy, and the other where the property is in the possession of the bankrupt or of the bankrupt’s agent or officer, was intended as the statement of a general rule applicable to all classes of adverse claims which might arise, or as indicating that an adverse claimant may be proceeded against summarily because his claim is not based upon a transfer antedating the bankruptcy. The essential distinction stated is, as I take it, between possession by adverse claimants, on the one hand, and by the bankrupt and- his agents, on the other.</p> <p>And while in a summary proceeding brought by a trustee in bankruptcy to recover property in the possession of an adverse claimant the court of bankruptcy may enter upon a preliminary inquiry to determine whether the adverse claim is real or merely colorable, and if it be merely colorable may proceed summarily; yet, on the other hand, if found to be real, the bankruptcy court must decline to adjudicate summarily upon the merits. 1 Lovel. Bankc’y (4th Ed.) § 36, p. 123, and cas. cit. note 66.</p> <p>Applying this rule I have examined the proof under the issues presented by the pleadings, and conclude that the claim of the receiver, who holds the fund in question as the representative of the Railroad Company and its creditors, and adversely to the bankrupt and its trustee, including the contention that the property involved was owned and possessed by the Railroad Company at the time the petition in bankruptcy was filed, in its own and independent right, and not as the agent of the Coal Company, is real, and not merely colorable.</p> <p>I am hence of opinion that the referee was without jurisdiction to proceed summarily to determine the merits of the controversy presented, and that, without reference to the effect of section lid of the Bankruptcy Act or other Issues presented by the pleadings, none of which I now determine, his order dismissing the trustee’s petition should" be confirmed, except that the same should be modified so that such dismissal be made for want of juridiction and without prejudice to the right of the trustee, if any he have, to hereafter proceed by plenary suit in any court baying jurisdiction of the controversy presented.</p>

Rose, Judge. Suit in equity by the Sanford Riley Stoker Company against Frederick Iron & Steel Company and another, for infringement of patent. Decree for plaintiff (274 Fed. 864), and defendants appeal.

<p>1. Specific performance <©=75 — Contract to pay for land by sowing part to grain and delivering half of hay and grain crops held not specifically enforceable.</p> <p>Where purchasers from plaintiff’s assignor agreed to pay a mortgage on the premises, and to pay a large portion of the purchase price by delivery annually of one-half of all grain and hay crops raised and harvested from the premises, at market prices, until such portion was paid, and to sow annually a specified acreage in wheat, held, that such contract would not be specifically enforced, as it would involve for a considerable period of time the supervision by the court of farming operations and the ordering that defendants specifically provide the funds to pay taxes and interest.</p> <p>2. Specific performance <§=8 — Not granted as of right.</p> <p>Specific performance of a contract by a court of equity is not a matter of absolute right, but rests in the sound discretion of the chancellor.</p> <p>3. Equity <§=90 — Ail persons materially interested- should be made parties.</p> <p>Generally, in equity, all persons materially interested, either legally or beneficially, in the subject-matter of the suit, are to be made parties, and when it appears that necessary and indispensable parties are beyond the jurisdiction of the court, it would be useless to grant leave to amend.</p> <p><§=For other cases see same topic & KEY-NUMBER in ail Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Southern District of Florida; Rhydon M. Call, Judge.</p> <p>Action at law by Grace Pemberton against the Morris Fertilizer Company. Judgment for defendant on directed verdict, and plaintiff brings error,</p>

<p>Appeal from the District Court of the United States for the Eastern District of Virginia, at Norfolk; D. Lawrence Groner, Judge. .</p> <p>Libel by Jean Jensen against the United States and the United'States Shipping Board Emergency Fleet Corporation, owners and operators of the steamship Meton. From a decree dismissing the libel, libelant appeals.</p>

<p>Aliens <§=»53 — '“Wife” of citizen having dangerous disease not entitled to admission, if, because of race, incapable of becoming citizen.</p> <p>The proviso to Immigration Act Feb. 5, 1917, § 22 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 4289¼l), that the wife of a naturalized alien, to whom he was married subsequent to naturalization, shall be admitted without detention for treatment of a disease with which she is found to be affected, relates only to a wife who by her marriage has acquired her husband’s citizenship, and does not apply to a Chinese .wife, who, notwithstanding her marriage, though to a native-born citizen, by reason of her race is incapable of becoming a citizen.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Wife.]</p> <p><g=»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Information by the United States for the forfeiture of 26 cases of intoxicating liquors.</p>

<p>In the matter of the petition of Dong Chong to become a citizen of the United States. On motion to dismiss the petition.</p>

<p>1. Removal of causes ©=l 15 — Removed 'cause is not governed by state law, except under Conformity Act.</p> <p>An action, which was begun in a state court and removed to the United States court, is not burdened with all of the incidents of state practice, but becomes one over which the United States court has complete jurisdiction, unaffected by any state statute, except in so far as such statutes govern under the Conformity Act (Rev. St. § 914; Comp. St. § 1537).</p> <p>2. Courts ©=339 — Conformity Act does not subject court’s discretion to state control.</p> <p>The Conformity Act (Rev. St. § 914; Comp. St. § 1537), requiring the practice, pleadings, forms, and modes of proceeding in civil causes to conform as near as may be to those in like cases in the state courts, does not make all state procedure controlling in a federal court, but permits the federal court to disregard such procedure when it is in the interest of justice to do so, and a federal court is not required to submit to the state practice in a matter which involves its discretion respecting the final disposition of the case.</p> <p>3. Evidence ©=82 — It is presumed holding case for trial was in the interest of justice.</p> <p>Where the court in a prior action held the case for trial, notwithstanding the failure of plaintiff and his counsel to appear on the day set for the trial, it is presumed that the court’s action was taken in the interest of justice.</p> <p>4. Removal of causes ©=l 00 — Remand may be denied, where prosecution in state court was already enjoined.</p> <p>Even though a cause removed to the United States court is one in which a remand should be ordered, a motion therefor will be denied, where the prosecution of the action in the state court was already enjoined by a final decree of the United States District Court.</p> <p>5. Dismissal and nonsuit ©=60(9) — Statutory provision, court “may” dismiss for plaintiff’s nonappearance, does not require dismissal.</p> <p>The word “may” in a statute means “must” or “shall” only where the public interest and rights are concerned, and where the public or third persons have a claim de jure that the power should be exercised; otherwise, it has its ordinary permissive meaning, so that the provision of Gen. Code Ohio, § 11586, that the court may dismiss for'plaintiff’s failure to appear at time of trial, does not prevent the court, in the interest of justine to defendant, from proceeding ■with the trial, notwithstanding plaintiff’s nonappearance.</p> <p>•©=For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, May (in Statutes as Permissive or Mandatory).]</p>

<p>Raymond H. Bowman and others were indicted for presenting and causing to be presented claims against a corporation whose stock was owned by the government while- they were on board an American vessel on the high seas, or in a foreign country, and one defendant demurs to the indictment.</p>

Orr, Judge. Action at law by the Hagemeyer Trading Company, to the use of Hagemeyer Trading Company, Inc., against Marcus W. Saxman and others, trading as the Hudson Reduction Company. Judgment for defendants on directed verdict, and plaintiff brings error.

Edward J. Donegan was convicted on twelve counts of an indictment for a violation of section 46 of the United States Criminal Code (Comp. St. § 10213) and section 37 of the United States Criminal Code (Comp. St. § 10201). From the judgment of conviction, defendant brings error.

Lawrence Groner, Judge. In the matter of the estate of the Stribling Fuel Company, Inc., bankrupt. From an order allowing the claim of W. S. Graham for one year’s rent under a lease executed to the bankrupt, Russell T. Bradford, as trustee in bankruptcy, appeals.

<p>Appeal from the District Court of the United States for the Eastern Division of the Northern District of Ohio; D. C. Westenhaver, Judge.</p> <p>Bill by John C. Eauritzen and others against the Banner Machine Company. Decree for defendant, and plaintiffs appeál.</p>

Rudkin, Judge. In the matter of J. H. McNeice and another, individually and as copartners doing business under the name and style of McNeice Furniture Company, bankrupts. From allowance of claim of O. A. Sproal, Dolph Barnett, as trustee of the bankrupts, appeals.

<p>In Admiralty. Libel by E. C. Sherwood against the American Sugar Refining Company.</p>

<p>1. Shipping <©=>108 — Oral contract of charterer does not bind ship.</p> <p>Oral contract of time charterer to carry a cargo does not bind the ship, but the only contract which does is the bill of lading of its master, or of some other duly authorized agent of the owner.</p> <p>2. Shipping <§=>106 — Master of chartered vessel ratifies ail bills of lading signed by charterer when he sets sail. i.</p> <p>Where vessel is under a time charter, the master ratifies all bills of lading signed by the time charterer when he sets sail, and thereafter such bill of lading is the measure of the ship’s duty and the cargo’s “privilege”; but such ratification does not extend to oral contracts of carriage made by the charterer personally.</p> <p>3. Shipping <©=>125 — War deviation clause held not to excuse deviation not caused by war conditions.</p> <p>An article in a bill of lading, that “in view of war conditions” vessel was at liberty to deviate in the course of the voyage, held to excuse only deviations occasioned by war conditions.</p> <p>Supplemental Opinion.</p> <p>4. Shipping <©=>125 — Clause in bill of lading held to allow reasonable deviation.</p> <p>A clause in a bill of lading for a mixed cargo, “with the liberty to call at any port or ports in or out of the customary route in any order,” held to excuse deviation, consisting of a stop at a place some 30 hours away from the port of departure for the purpose of making up a cargo, but pot to excuse a return to the port of departure, as the voyage, once started, should have been continuous.</p> <p>©=For other cases see same topic & KEY-NTJMBER in'all Key-Numbered Digests & Indexes</p>

<p>In Equity. Suit by the Oregon Short Dine Railroad Company against the Kimama Highway District and others to enjoin, a highway bond issue.</p>

<p>In Error to the District Court of the United States for the Northern District of Alabama; Wm. I. Grubb, Judge. '</p> <p>Action at law by Clarence W. Allgood, a minor, by his next friend, R. V. Allgood, against Walker D. Hines, Director General of Railroads. • Judgment for defendant, and plaintiff brings error.</p>

<p>In Error to the District Court of the United States for the Western District of Louisiana; Geo. W. Jack, Judge.</p> <p>Action at law by Louis Morris Davies against the Underwood Contracting Corporation. Judgment for plaintiff, and defendant brings error.</p>

<p>In Error to the District Court of the United States for the Southern Division of the Western District of Washington; Edward E. Cushman, Judge.</p> <p>Action by the United States against the Northern Pacific Railway Company. Judgment for defendant, and»plaintiff brings error."</p>

<p>In Error to the District Court of the United States for the Eastern District .of Pennsylvania; J. Whitaker Thompson, Judge.</p> <p>Action at law by the Northwestern Consolidated Milling Company against Joseph Rosenberg and Myer Rosenberg, trading as J. Rosenberg & Sons. Judgment for defendants, and plaintiff brings error.</p>

<p>In Error to the District Court of the United States for the Eastern District of Pennsylvania; J. Whitaker Thompson, Judge.</p> <p>Criminal prosecution by the United States against Emanuel Bookbinder. Judgment of conviction, and defendant brings error.</p>

<p>I. Coürts <§=»509 — Federal court has jurisdiction to enjoin execution of judgment of state court.</p> <p>A federal court of equity has the same jurisdiction in case of diverse ■citizenship > to grant relief against a judgment of a state -court which has been obtained, without competent service or voluntary .appearance,' or where its enforcement would be a fraud on complainant, as if, the judgment had been rendered by the federal court'- -</p> <p>(gcoFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>2. Process <3=?39 — Signature of clerk held requisite to validity, >' ■</p> <p>Under Code Prac. La. art. 179, providing that a citation ,to defendant must be signed by the clerk, a citation or summons not so signed is a nullity.</p> <p>3. Judgment <©^92 — Strict compliance with law necessary to sustain default judgment. ‘ ■</p> <p>Where judgment is rendered by default, without appearance having at any time been made, and the defendant therein is not in fact indebted, strict compliance with the proceedings necessary to the rendition of such judgment will be exacted.</p> <p>4. Judgment <®=s>414— Enforcement of judgment against garnishee, who was not in fact indebted, without actual notice, enjoined as unconscionable.</p> <p>Enforcement of a judgment for $15,000 against a foreign corporation as garnishee on service of citation on its agent appointed for service under the state law, who was defendant in the principal action in which, the garnishment was issued, held unconscionable and enjoined, where complainant was not in fact indebted to the principal defendant and had no actual notice or knowledge of the proceedings.</p> <p>^=oFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Shipping <§=»53 — Owner of cargo held responsible for improper loading on lighter.</p> <p>Respondent, which loaded a lighter with steel and iron goods at its warehouse for libelant, held not liable for damage to the cargo, caused by improper loading, on evidence that the loa.ding was done as required by libelant’s manager; libelant being owner of the lighter pro hac vice, under a harbor demise from the respondent.</p> <p><§=»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Intoxicating liquors <®=jI08(2) — Copy of agent’s report is sufficient “statement of facts” with citation to revoke permit.</p> <p>The furnishing, with a citation to revoke a permit to withdraw liquor for non-beverage purposes, of a copy of the agent’s report to the local prohibition director’s office, is a sufficient statement of facts to comply with the requirement of National Prohibition Act, tit. 2, § 9, that a statement of the facts constituting the violation charged shall accompany the citation, if the proceedings he initiated for the commissioner.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Statement of Fact.]</p> <p>2. Intoxicating liquors <§=jI08(9) — 'Withdrawal cannot be denied until hearing on revocation of permit.</p> <p>One who holds a permit for the withdrawal of intoxicating liquor for nonbeverage purposes cannot be denied the right to withdraw liquors after a citation for revocation of the permit has been served upon him, hut before the hearing, which would be to permit him to be condemned unheard ; the provision in National Prohibition Act, tit. 2, § 9, that during the pendency of an action the permit shall be temporarily revoked, applying to tbe action brought by tbe permittee for a review of the decision of the Commissioner after hearing by him revoking the permit.</p> <p>3. Intoxicating liquors <©=>I06(I) — Treasury decision must be based upon original law.</p> <p>No official has a right to exercise authority to promulgate rules and regulations, except as they have their basis in original law, and therefore the- treasury decision denying the right of a permittee to withdraw liquor while proceedings for revocation of the permit are pending does not justify refusal of such withdrawal.</p> <p>©=»For other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Internal revenue <@=»28 — Court cannot enjoin collection of income taxes.</p> <p>A suit to enjoin, proceedings for collection of income taxes held not maintainable, in view of Rev. St. § 3224 (Comp. St. § 5947), providing that “no suit for tbe purpose of restraining tbe assessment or collection of any tax can be maintained in any court.”</p> <p><§s^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Petition to Revise Order of the District Court of the United States for the Eastern District of New York. In the matter of Adolph Paleais, bankrupt. The bankrupt was ordered to turn over to the receiver certain books and papers, and he brings a petition to revise.</p>

<p>In Error to the District Court of the United States for the Southern District of New York. Anthony Prisco was convicted of an offense, and he brings error.</p>

<p>In Error to the District Court of the United States for the Eastern District of New York. Angelo Signio was convicted of the unlawful sale of liquor, and he brings error.</p>