On February 19, 1927, a motion was granted upon default, allowing a supplemental summons and cross-complaint to be served by the defendant United American Lines, Inc., upon the Davis Engineering Corporation, pursuant to the provisions of section 193, subd. 2, of the Civil Practice Act of the state of New York; no notice having been given to the said Davis Engineering Corporation and no one appearing in opposition. On March 16, 1927, a summons with crosscomplaint, was served by the defendant United American Lines, Inc., on the Davis Engineering Corporation.

The Davis Engineering Corporation now appears specially for the purpose of setting aside the service of the summons and crosscomplaint upon several grounds, one of them being that this court is without jurisdiction. It appears from the pleadings and affidavits filed herein that the plaintiff, Wilson, is a citizen of the state of New York; that the United American Lines, Inc., and the Davis Engineering Corporation are both Delaware corporations.

The action was instituted by the plaintiff, Wilson, as administrator of the goods, chattels, and credits of John Leitch, deceased, against the United American Lines, Inc., to recover damages against the latter by reason of the death of Leitch, alleged to have occurred on July 13, 1923, while the deceased was employed as a member of the crew on board the steamship Reliance, owned or controlled by the defendant United American Lines, and is brought under section 8337a, United States Compiled Statutes (46 USCA § 688), enacted by the Congress of the United States March 4, 1915, and as amended June 5, 1920, commonly known as the Jones Act.

In this action the plaintiff, Wilson, cannot recover from the Davis Engineering Corporation, the defendant impleaded, as the suit is brought under the Jones Act, and the relationship of employer and seaman does not exist between the plaintiff and defendant impleaded, and no cause of action against the Davis Engineering Corporation is set forth in the complaint in the original action. The sole purpose, therefore, of the defendant United American Lines, Inc., in bringing in the Davis Engineering Corporation, is that it may recover against the Davis Engineering Corporation in the event that the plaintiff, Wilson, succeeds against it, the United American Lines, Inc. This is a separate controversy between the United American Lines, Inc., and the Davis Engineering

Corporation, and the facts and law applicable to that controversy are not the same as those applying to the controversy between the plaintiff, Wilson, and the United American Lines, Inc., under section 193, subd. 2, of the Civil Practice Act, the defendant is permitted to frame a supplemental pleading in the nature of a complaint against the party which it seeks to bring in, which, if sustained, entitles the defendant to appropriate relief against the defendant impleaded. In the event that the plaintiff, Wilson, succeeds against the defendant United American Lines, Inc., there would be a judgment by the plaintiff against the defendant, and if the United American Lines, Inc., were successful in its controversy with the Davis Engineering Corporation, there would be a judgment in its favor against the Davis Engineering Corporation. Otis Elevator Co. v. Miller, 127 Misc. Rep. 421, 216 N. Y. S. 320; Bozzuffi v. Darrieusecq, 125 Misc. Rep. 178, 210 N. Y. S. 455. This bringing in by the defendant of another party by the original defendant is in the nature of a new and separate action, for the pleadings are not necessarily the same as in the original action and the judgment is separate; the judgments differ, both as to parties and possibly as to the amount.

In this separate controversy between the United American Lines, Inc., and Davis En. gineering Corporation, there is no diversity of citizenship, as they are both Delaware corporations, and while plaintiff, Wilson, is suing the United American Lines under the Unted States statute, the Jones Act, that act does not apply as between the plaintiff, Wilson, and the Davis Engineering Corporation, for the reasons stated above, nor is that statute, or any other United States statute, the ground upon which the United American Lines, Inc., seeks to recover against the Davis Engineering Corporation, and there is no ground here upon which this court would acquire jurisdiction of the controversy between the United American Lines, Inc., and the Davis Engineering Corporation. Section 193, subd. 2, of the Civil Practice Act of New York, permits a defendant to implead another defendant under certain circumstances; but it cannot bestow jursidiction upon this court where the court lacks fundamental jurisdiction. The state act cannot do indirectly what it is powerless to do directly.

Accordingly the motion to set aside the service of the summons and cross-complaint is granted. Settle order on notice.

SLAVICK JEWELRY CO. v. CARTER, Internal Revenue Collector, et al.

District Court, S. D. California, S. D. October 10, 1927.

No. 2501-J.

Internal revenue 25-Sales tax on jewelry

sold on conditional sale contracts held com

putable on so much of price as was actually received (Revenue Acts 1918, 1921, § 905 [Comp. St. § 63094f]).

Plaintiff sold jewelry on conditional sale contracts, which entitled it, at its option, on default to retake the article or recover the unpaid part of the price. After partial collections on sales, it charged off the balances due as uncollectible. Held, that such action

was a confirmation of the sales, and that under

Revenue Acts 1918 and 1921, § 905 (Comp. St. § 63094%f), sales tax was then due, but computable on the amount actually received, and not on the prices contracted for.

At Law. Action by the Slavick Jewelry Company against John P. Carter, Collector of Internal Revenue, and others. Judgment for plaintiff.

Mitchell, Silberberg & Davis, of Los Angeles, Cal., for plaintiff.

Samuel W. McNabb, U. S. Atty., of Los Angeles, Cal., Emmett E. Doherty, Asst. U. S. Atty., of San Francisco, Cal., and L. Dana Latham, Special Counsel, Bureau of Internal Revenue, of Los Angeles, Cal., for defendants.

JAMES, District Judge. Plaintiff corporation brings this suit to recover from the defendant, the district internal revenue collector, the sum of $3,637.34, which was paid upon the demand of the collector as a tax imposed upon sales made by plaintiff as a dealer in jewelry. The facts were stipulated. By this stipulation it appears that plaintiff, during the period between December, 1920, and December, 1924, inclusive, in the course of its regular business, bargained with approximately 700 persons for the separate sale of different articles of jewelry upon which it thereafter received certain payments which were credited on the purchase price, subject to further conditions which will hereinafter be referred to. The total amount of the agreed sale price on the aggregate account totaled $72,746.80. After having received payments amounting to $49,115.55, plaintiff, considering that the remainder of the agreed prices were uncollectable, charged off $23,631.25 to loss and closed the accounts.

The Revenue Department, acting under the provisions of section 905 of Revenue Acts of 1918 and 1921 (Comp. St. § 6309 %f), col

lected a tax of 5 per cent. on the total sales price of the jewelry. Plaintiff in due time presented its claim for refund, which was refused, and this suit was then brought.

The law, which is to be looked to as embodied in the acts cited, provides that upon tax equivalent to 5 per centum of the price all articles commercially known as jewelry a shall be paid by a dealer when such jewelry is "sold." Each of the transactions making up the list of the sales, as claimed to have been made by the plaintiff, rested upon a conditional sales contract made between the vendor and its customer. The contract, a copy of which is attached to the stipulation of the facts, shows that the agreement took the ordinary form of lease or conditional sales contract, title being reserved in the vendor until all installments of the purchase price had been paid, and entitling the vendor to retake the merchandise upon default made in any payment. The customary term was also included that the vendor might at its option sue for the entire sum due when default in the payment of any installment was made. The contract was without question a contract of sale whereby the vendor reserved title in itself as security for the payment of the whole of the purchase price. Under such a contract the vendor had the right to waive the option to retake possession of the merchandise, notwithstanding the default of the purchaser, and to confirm title in the purchaser. and collect the amount due.

The contention of the plaintiff that the transactions concerned did not constitute sales, in the manner in which they were handled, cannot be given approval without misapplying the purpose and intent of the revenue law. If the contention advanced is allowed to its fullest extent, it will be possible for jewelry merchants to successfully evade the payment of the sales tax by allowing the purchaser credit for a small part of the purchase price and having the sales terms expressed in a contract similar to the form exhibited here. The law is intended to work the practical result that the government shall be paid its tax where a jeweler disposes of his merchandise in the ordinary course of trade. This is not to say that the tax is payable from an uncompleted sale; and it is my opinion that a conditional sales contract does leave the transaction as uncompleted until the purchaser satisfies the condition as to payment, or the vendor affirmatively, or by his acts impliedly, confirms the transaction as completed, and relinquishes title to the vendee. Under the facts of this case it must be concluded, I think, that the

act of the vendor in charging to loss the balance of the price against the several purchasers amounted to an election not to retake the property. It must be assumed under the stipulation that the accounts were in fact uncollectable when they were charged off as such. Under that condition, the purchase price on each sale must necessarily be the amount actually collected. Treating the transaction as defined at the time of the "charge-off," the conclusion just expressed would seem to be inescapable.

It is therefore proper that the revenue collector should receive from the plaintiff the sales tax required to be paid by law. That tax, however, should be computed on the total of $49,115.55, which was the amount paid by the purchasers of the jewelry. It appears that plaintiff actually paid on the uncollected portion of the purchase price of the jewelry a tax in the sum of $1,181.56. For this amount it is entitled to judgment.

THE OCEAN VIEW.

er Ocean View subsequent to January 27, 1925. The vessel was seized and sold under admiralty process, and the fund in the registry amounts to approximately $7,000. The lien claims total approximately $9,000. The intervening libelant, the Chamber of Commerce of Alexandria, Va., a Virginia corporation, is the holder of a mortgage of $8,000 upon the steamer, dated January 27, 1925, and priority is claimed by virtue of this mortgage. It is admitted that the mortgage does not comply with the provisions of the Ship Mortgage Act of June 5, 1920 (41 Stat. 1000 [Comp. St. §§ 81464jjj-8146гr]), and the only question presented in this proceeding is what, if any, priority this mortgage is entitled to.

1927.

No. 1421.

1. Admiralty 15-Mortgage is not for admiralty jurisdiction, though on a ship.

A mortgage, as such, has no maritime incidents, and is not a matter for admiralty juris

diction, though on a ship.

2. Shipping 30-Mortgage not complying with Ship Mortgage Act 1920 is not "maritime lien" (Comp. St. §§ 8146jjj-81461⁄4rr).

A mortgage on a ship, not in compliance with Ship Mortgage Act 1920 (Comp. St. §§ 81464jjj-81464 rr), confers no "maritime lien," and has the status of a common-law lien, which is subsequent to all maritime claims.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Maritime Lien.]

In Admiralty. Suit by Edward Hamill against the steamer Ocean View. On exceptions to intervening libel of the Chamber of Commerce of Alexandria, Va. Exceptions sustained.

Henry L. Wortche, George Forbes, Griffin & Beatty, Emory, Beeuwkes & Skeen, John Henry Skeen, and J. Marsh Matthews, all of Baltimore, Md., for lien claimants.

J. Louis Raap, of Baltimore, Md., for mortgagee.

COLEMAN, District Judge. In this case the original libel was filed, asserting a lien for repairs and supplies furnished the steam

[1, 2] It is well settled that a mortgage, as generally understood, has no maritime incidents, and therefore is not a matter for admiralty jurisdiction, nor is it brought within such jurisdiction by the mere fact that it happens to be placed upon a ship. Bogart v. The John Jay, 17 How. 399, 15 L. Ed. 95; Schuchardt v. Babbidge, 19 How. 239, 15 L. Ed. 625. See, also, Benedict on Admiralty However, under the Act of June 5, 1920, a mortgage complying with the terms of that act is affected with maritime incidents and given priority as expressly provided therein; that is, the mortgage becomes a preferred one, and is subject to admiralty and maritime jurisdiction, entitling it to priority over all claims except “(1) preferred maritime liens, and (2) expenses and fees allowed and costs taxed by the court." Section 30, subsec. M (46 USCA § 95 [Comp. St. §. 81461⁄4nnn]). Preferred mari time liens are further defined in the act.

Since the mortgage here under consideration does not comply with the act, it confers no maritime lien at all, and must take the status assigned to common-law liens, which are subsequent to all maritime claims. See Morse Dry Dock Co. v. The Northern Star, 271 U. S. 552, 46 S. Ct. 589, 70 L. Ed. 1082. In this case the Supreme Court has set at rest any question as to whether the provisions of the Ship Mortgage Act must be strictly complied with, saying at page 556 (46 S. Ct. 590): "The words of the statute seem to us too clear to be escaped. The mortgage is made preferred only upon compliance with all the conditions specified, one of which is indorsement, and a maritime lien is preferred, if it arises before the recording and indorsement of the mortgage. We see no room for construction, and there is nothing for the courts to do but to bow their heads and obey."

Aliens 62 (3)-Petitioner, working within judicial district for four years, while family resided elsewhere, held not "resident," withIn naturalization requirements (Naturalization Act,3 [8 USCA § 357]).

Where petitioner for naturalization had resided with family on farm in Pennsylvania for a number of years, and, though working within district where petition was filed for some four years, family had never resided therein, he was not a "resident," within meaning of Naturalization Act June 29, 1906, § 3 (8 USCA § 357), prescribing that naturalization shall extend only to aliens resident within judicial district.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Resident.]

Naturalization Proceeding. Petition for naturalization of George Wojciech Matczak. Petition denied.

TUTTLE, District Judge. The petition for naturalization, No. 15312, of George Wojciech Matczak, filed with this court on April 16, 1926, came on regularly for hearing on September 19, 1927. The following were all of the facts presented to the court on the question of the residence of petitioner. (1) The petitioner was born in Poland in 1884 and arrived in the United States in 1906. (2) He purchased a farm and established a home in the state of Pennsylvania.

(3) His family has resided upon this farm in Pennsylvania for a number of years and is now residing there.

(4) The petitioner has worked in Detroit at intervals for upwards of four years. (5) The petitioner's family has never resided in the state of Michigan.

The court holds that the facts so presented are insufficient to satisfy the burden of proof which is upon the petitioner to show that he is a resident of this district. Therefore he cannot prosecute a petition for naturalization in this jurisdiction, since under section 3 of the Naturalization Act of June

In re DEMANIS.

District Court, E. D. Michigan. September 19, 1927.

Aliens 68(3)-Certificate filed with petition for naturalization must show legal entry of petitioner into United States (Naturalization Act [8 USCA § 380]).

Under Naturalization Act June 29, 1906, § 4 (2), being 8 USCA § 380, requiring certificate from Department of Labor to be filed with petition for naturalization, showing date, place, and manner of arrival of applicant in United States, such certificate must show legal arrival in compliance with all immigration law requirements, and certificate that record of arrival cannot be found is insufficient.

TUTTLE, District Judge. The petition for naturalization No. 17755 of Nickolaos Georgeou Demanis, filed with this court on October 27, 1926, came on regularly for hearing on September 19, 1927. The following facts were presented to the court:

1. Petitioner was born in Turkey September 14, 1891, and claims to have landed in the United States in March, 1912.

2. No record of his arrival in the United States could be found.

3. On October 13, 1926, he paid $4 to the United States government as a head tax and was issued a so-called nunc pro tunc certificate of arrival by the immigration authorities. This so-called certificate of arrival was a statement that a record of his arrival in the United States could not be found.

The court holds, in view of that part of subdivision 2 of section 4 of the Naturalization Act of June 29, 1906 (8 USCA § 380), which reads as follows:

"At the time of filing his petition there shall be filed with the clerk of the court a certificate from the Department of Labor, if the petitioner arrived in the United States after" the passage of this act, "stating the date, place, and manner of his arrival in the United

States, and the declaration of intention of such petitioner, which certificate and declaration shall be attached to and made a part of such petition,"

-that the certificate of arrival called for by the law must be a certificate showing a legal arrival in the United States in full compliance with all immigration law requirements, and that the so-called nunc pro tunc certificate of arrival, which is not an actual record of arrival in the United States, but a mere statement that a record of arrival cannot be found, is in no sense such a certification of arrival as is contemplated by the above-quoted statute. United States v. Ness, 245 U. S. 319, 38 S. Ct. 118, 62 L. Ed. 321. Petition denied.

Petition of READER.

District Court, E. D. Michigan. September 19, 1927.

No. 17699.

Aliens 62(5)-Alien, who was never legally admitted cannot make valid declaration of in

tention as basis for naturalization.

Alien, who entered United States unlawfully and was never legally admitted, cannot make valid declaration of intention as basis for naturalization.

Naturalization Proceeding. On petition of Charles Henry Reader for naturalization. Denied.

TUTTLE, District Judge. The petition for naturalization No. 17699 of Charles Henry Reader, filed with this court on October 25, 1926, came on regularly for hearing on September 19, 1927. The following facts were presented to the court:

(1) Petitioner was born in England, November 7, 1899.

(2) While serving as a seaman, on a boat calling at a United States port, the petitioner deserted the boat and entered the United States without the payment of head tax or inspection by the immigration authorities as required by the immigration law.

(3) Petitioner declared his intention to become a citizen March 3, 1920.

The court holds that the petitioner was never legally admitted into the United States, and that hence his declaration of intention is invalid and insufficient upon which to base a petition for naturalization. In re Jensen (D. C.) 11 F. (2d) 414.

Petition denied.

CULLEN v. ESOLA, U. S. Marshal, et al. District Court, N. D. California, S. D. October 7, 1927.

No. 1954.

1. Injunction 128-State or federal officers will not be enjoined from instituting criminal proceedings, except on clear showing of right.

A court of equity will enjoin the officers of a state or the United States from instituting criminal proceedings in certain instances, but not be exercised except upon clear showing of such jurisdiction is of limited scope and will plaintiff's right.

2. Conspiracy 23-Law making conspiracy to commit offense against United States a felony held valid (Criminal Code [18 USCA § 88]).

Criminal Code, § 37 (18 USCA § 88), providing that conspiracy to commit any offense against the United States constitutes a felony, held valid.

3. Conspiracy 43(6)-Indictment for conspiracy to violate law forbidding interstate transportation of prize fight films charged offense against United States (Criminal Code [18 USCA § 88]; 18 USCA §§ 405-407).

An indictment for conspiracy to violate 18 USCA §§ 405-407, prohibiting the interstate transportation of films or other pictorial representations of prize fights, held to charge an offense against the United States within meaning of Criminal Code, § 37 (18 USCA § 88).

4. Injunction 105(1)-Equity court, in proceeding to restrain arrest and seizing prize fight films, cannot determine evidentiary value of films or admissibility in criminal case (18 USCA § 405–407).

Court of equity, in a proceeding to restrain arrest and seizing certain motion picture prize fight films, has no jurisdiction to determine evidentiary value of films seized or their admissibility in evidence on trial of criminal charges under 18 USCA §§ 405-407; such matters being for a jury in a common law court. 5. Injunction

105(1)—Theater

operator may not restrain federal officers from making arrests and seizure of prize fight films (18 USCA §§ 405-407).

Theater operator held not entitled to restrain United States officials from making arrests and seizing motion pictures of prize fights under 18 USCA §§ 405-407, in so far as single arrest with accompanying seizure of

films as evidence is concerned, in that to enjoin such arrest and seizure would be to determine guilt or innocence of crime in advance of trial and admissibility of evidence therein. 6. Injunction 105(1)-United States attorney will not be enjoined from repeatedly entering theater to seize prize fight films, copied within state after interstate transporation (18 USCA §§ 405-407).

from repeatedly entering premises of theater exhibiting prize fight films in alleged violation of 18 USCA §§ 405 407, though such films

United States attorney will not be enjoined