is expressly referred to as "liquor" in said section, which prescribes that a permit must be had therefor. Said section also limits the amount of "alcohol" which may be used in the manufacture of any of said articles, including, of course, the articles manufactured by complainant. The section recognizes that said articles exempted, including complainant's articles may be used and sold for intoxicating beverage purposes. Section 5, tit. 2, places the burden in a certain class of cases on the manufacturer to show cause why his product should not be "dealt with" as an "intoxicating liquor." Section 6 treats of the whole matter of the issuance of permits, and it is difficult, especially in view of the rule of liberal construction laid down in section 3 of the act, to hold that the time limitations upon permits expressed in section 6 should be held not to include permits issued to manufacturers under section 4, merely because the word "liquor" is used in section 6 in referring to the permits which expire at the times in said section mentioned. In the case of United States v. Katz, et al., 46 S. Ct. 513, 70 L. Ed., decided May 24, 1926, the Supreme Court said: "Of the 39 sections in title 2 of the act which deals with National Prohibition, more than half, including the 7 sections which precede section 10 [Comp. St. § 10138/20] contain provisions authorizing or regulating the manufacture, sale, transportation, or use of intoxicating liquor for nonbeverage purposes. These provisions, read together, clearly indicate a statutory plan or scheme to regulate the disposition of alcoholic liquor not prohibited by the Eighteenth Amendment, in such manner as to minimize the danger of its diversion from authorized or permitted uses to beverage purposes." It would seem, therefore, that the time limitations contained in section 6 apply to the permit here involved, and that said Treasury Decision merely declared what was already the law. In Ma-King v. Blair, supra, the Supreme Court has repeated that: "The dominant purpose of the act is to prevent the use of intoxicating liquor as a beverage, and all its provisions are to be liberally construed to that end." I should add that I have not overlooked Higgins v. Foster (C. C. A.) 12 F. (2d) 646, and Rock v. Blair (D. C.) 13 F. (2d) 1004. They are by courts of another circuit, and I have not felt constrained to follow them. Complainant has not established a clear right to injunctive relief, and the injunction will therefore be denied. THE IOANNIS VATIS. VATIS v. DEXTER & CARPENTER, Inc. (District Court, S. D. New York. July 6, 1926.) 1. Wharves 18-Under charter party, vessel held liable for wharfage incident to occupation of berth, but not for wharfage incident to use of wharf for cargo. Where charter party provided, "The freight is in full of trimmings, and all port charges, pilotages, and consulages on the vessel; all wharfage dues on the cargo to be paid by the charterers," held, vessel was liable for wharfage incident to occupation of berth, but not for wharfage incident to use of wharf for cargo. 2. Shipping 50-Defense of voluntary pay. ment by charterer held not available to vessel, in libel for wharfage charges paid. Defense of voluntary payment by charterer held not available to vessel, in libel for wharfage for which vessel was liable under charter party. 3. Wharves 18-Vessel held liable, under contract made by charterer's agent, for wharfage incident to occupation of berth. Master of vessel, liable under charter party for wharfage incident to occupation of berth, by occupying wharf secured by charterer's agent, made vessel liable on reasonable contract for wharfage made by libelant as charterer's agent. penter, Inc., against the steamship Ioannis In Admiralty. Libel by Dexter & Carlibel. Decree for libelant in accordance with Vatis, etc., in which respondent filed a crossopinion. Haight, Smith, Griffin & Deming, of New York City, for libelant. Kirlin, Woolsey, Campbell, Hickox & Keating, of New York City (Earl Appleman, of New York City, of counsel), for claimant and cross-libelant. AUGUSTUS N. HAND, District Judge. [1] The charter party in this case provided that: "The freight is in full of trimmings, and all port charges, pilotages, and consulages on the vessel. All wharfage dues on the cargo to be paid by the charterers." This clause clearly renders the vessel liable for wharfage incident to occupation of a berth and excludes liability of the vessel for wharfage incident to the use of the wharf for cargo. In The Vigo (D. C.) 257 F. 586, where the charter party read, "Steamer to pay all port charges, Judge Learned Hand held that the ship was responsible for the use of the wharf for berthing, but the charterer was to pay for the use of it to receive the cargo. He followed the eminent authority of Lord Sumner (then Hamilton, J.) 16 F. (2d) 285 in Societa Anonyma, etc., v. Hamburg South American S. S. Co., 17 Com. Cas. 216. Subdivision "six" of the agreed statement of facts stipulates that "libelant employed the National Stevedoring Company in New York to discharge the cargoes into lighters," so that there was no wharfage due from any one on the cargo. It is argued that this case differs from The Vigo, supra, because of the language of subdivision 8 of the charter party here, which provides that: "The cargo be taken from alongside by consignees at port of discharge, free of expense and risk to the steamer, at the average rate of 750 tons per day. Consignees to effect the discharge of the cargo, steamer paying 40 cents per ton of 20 cwt., or 1,015 kilos, and providing only steam, steam winches, winchmen, gins, and falls." This clause seems to relate only to expenses connected with unloading, and has no bearing whatever upon wharfage, except as it may be incident to the lading of cargo on the wharf. It goes little farther than the clause in the Vigo's charter: "Expenses for loading and unloading shall be at charterer's expense." ed (C. C. A.) 7 F. (2d) 132, is not in point, and all other dues and charges, The opinion of Judge Hough in The Southern Cross (C. C. A.) 10 F.(2d) 699, 1926 A. M. C. 415, also does not govern. There the question considered was whether the owners of private wharves in New York Harbor, by publishing rates greater than those fixed by statute and local ordinance, obtained a lien for more than the statutory rates, in the absence of a special agreement by vessel occupying their wharves to pay the higher rates. The question was answered by the Circuit Court of Appeals in The Southern Cross, supra, in the negative. In the case at bar a special contract was proved, and the wharfinger would not have received the vessel without it. A decree is granted to the libelant for the agreed wharfage. The issues presented by the cross-libel are disposed of as indicated at the trial. Settle decree on notice. In re ISHEAR. [2] Two questions remain affecting libelant's claims. The first is as to the defense of voluntary payment, and the other as to the amount of wharfage due. I do not regard the defense of voluntary payment as available. Subdivision 9 of the charter, as well as the customary way of doing business, indicate that the charterer may make payments chargeable under the contract to the owner and collect them from the latter. That subdivision reads in part as follows: "The charterers' 1. Bankruptcy 407 (2)-That bankrupt did account at port of loading to be paid when rendered; otherwise the charterers may deduct it on settlement of freight at port of destination." [3] It may be, however, that the charterer is allowed to make payments for the account of the ship and yet cannot contract for her. But when the master occupied the wharf secured by the charterer he took something which the owner of the vessel was bound under the charter to pay for, and subjected the ship to a maritime lien based upon the reasonable contract for wharfage which the charterer's agents had made. If he had not wished to do this, he should have inquired about the arrangement to pay at the rate of $50 per day. In the circumstances, I think the libelant, who acted for the charterer, was agent for the owner pro hac vice. The decision in The Capitaine Faure (D. C.) 7 F.(2d) 131, 1924 A. M. C. 1137, affirm (District Court, S. D. Florida. October 30, 1926.) No. 3009. not have business or domicile within jurisdiction is not ground for objection to discharge (Bankruptcy Act, § 14 [Comp. St. § 9598]). Specification of objection, denying bankrupt had principal place of business, residence, or domicile within jurisdiction for six months before petition, held not one of grounds for refusing discharge under Bankruptcy Act, § 14 (Comp. St. § 9598), and must be litigated directly in bankruptcy proceedings. 2. Bankruptcy 413(4)—Specification of objection to discharge because of perjury on examination must set out offense strictly. Specification of objection to discharge must set out alleged offense of perjury on examination in bankruptcy proceedings with much the same strictness as if prosecution was pending for offense. 3. Bankruptcy 413(3)-Specification of objection to discharge should be verified by objecting creditor, if possible, and, if not, by one duly authorized. Specification of objection to discharge must be verified by objecting creditor, unless impos CALL, District Judge. This cause comes on for a hearing upon the motion of the bankrupt to strike certain specifications of objection to his discharge and the same was submitted on briefs. The specifications are three. The first was evidently intended to specify the second ground set out in section 14b of the act (Comp. St. § 9598). While the ground could have been very much more succinctly stated, still I think it sufficiently states the ground. [1] The second undertakes to deny that the bankrupt had his principal place of business, residence, or domicile in this jurisdiction for the greater portion of six months before filing his petition in bankruptcy. This is not one of the six grounds set out in section 14 for refusing a discharge, and is a matter to be litigated directly in the bankruptcy proceedings. The adjudication cannot be attacked thus collaterally, the record showing the jurisdiction of the court, and has no place in the proceedings seeking a discharge. [2] The third ground evidently was intended to charge the commission of an offense punishable by imprisonment under the Bankruptcy Act, by committing perjury on his examination. This last specification does not measure up to the requirements of the law in stating such a ground. The rule, as I understand, requires almost the same strictness in setting out specifications of objections to a discharge under the first ground as if a prosecution was pending for the offense. It is my conclusion that the second and third specifications are not sufficient. [3] I have considered the merits of the spec.ifications, because the objecting creditor indicates a desire to amend her specifications of objection. One of the grounds of the motion to strike is that the specifications are not verified. It is true the official form does not contain a form of verification; but it is equally true that the Circuit Court of Appeals of this Circuit has decided that speci fications of objection, being pleadings, must be verified, and this should be done by the objecting creditor unless, owing to circumstances, such as absence, lack of knowledge of the circumstances upon which the objection is based, etc., this cannot be done, and in that event one duly authorized and cognizant of the circumstances may verify the specifications. The better practice, as I understand it, is for the party, other than objecting creditor verifying specifications, to state why he verifies them and his authority to do so. This ground of the motion to dismiss is well taken as to all the specifications of objection, and will be sustained, and the motion granted, with leave to the objecting creditor to file amended first and third specifications of objection within 20 days. It will be so ordered. UNITED STATES TRUST CO. OF NEW YORK v. HICKS, Alien Property Custodian, et al. (District Court, 'S. D. New York. July 3, 1925.) 1. War 12-Status of German legatee of nonenemy claimant of money in hands of Alien Property Custodian, who died since the peace treaty with Germany held not that of an enemy, but of an alien friend. (Trading with Enemy Act, § 9(a) (d), as amended by Act March 4, 1923 [Comp. St. § 31152e].) In a suit under Trading with the Enemy Act, § 9 (a) (d), as amended by Act March 4, 1923 (Comp. St. § 3115e), by the legal representation of a deceased claimant of money in the hands of the Alien Property Custodian, who was a nonenemy and entitled to return of the money, and who died since the treaty with Germany of August 25, 1921, the fact that a legatee entitled to a part of the money as distributee under the will of decedent is a German citizen held not to subject her to the proviso requiring the giving of security for redelivery of the property, but her status is that of an alien friend, entitled to the money without condition. 2. War 12-Status of nonenemy property held by Alien Property Custodian not affected by its acquisition since the peace treaty by German citizen. The joint resolution of July 2, 1921, and the treaty with Germany of August 25, 1921, dealt only with property held by the Alien Property Custodian which at that time belonged to enemies, and not with nonenemy property, which might subsequently be acquired by German citizens. In Equity. Suit by the United States Trust Company of New York, as ancillary administrator with the will annexed of Fred 16 F. (2d) 286 erick Wesche, deceased, against Frederick C. Hicks, Alien Property Custodian, and another. On motion to dismiss bill. Denied, and decree for complainant. Selden Bacon, of New York City, for plaintiff. Emory R. Buckner, U. S. Atty., of New York City, and Dean Hill Stanley, Sp. Asst. Atty. Gen., for defendants. GODDARD, District Judge. Prior to the end of the war, the Alien Property Custodian demanded, as enemy property, and there was turned over to him, certain cash and securities, amounting to some $500,000, on deposit with the Commercial Trust Company of New Jersey in the joint names of Frederick Wesche and Helene J. Von Schier holz. The entire fund was demanded by the Alien Property Custodian as the property of Mrs. Von Schierholz, an American woman, who had lost her citizenship by marriage many years before the war, and who was living in Germany and therefore was an enemy. It subsequently developed that part of this property belonged to others, and it was returned to them, with the exception of the balance now remaining, which belonged to Wesche. dismiss the complaint, the grounds for the motion being as follows: "(1) It appears affirmatively from the allegations of the bill of complaint that the money and other property which the plaintiff seeks to recover from the defendants is distributable to a person not eligible as a claimant under subsections (a) and (c) of section 9 of the Trading with the Enemy Act, as amended. "(2) It appears affirmatively from the allegations of the bill of complaint that the person to whom the property sought to be recovered is distributable is an enemy within the meaning of the definition of the word 'enemy' as used in the Trading with the Enemy Act, as amended. "(3) It appears affirmatively from the allegations of the bill of complaint that the plaintiff is unwilling to comply with any conditions by way of security or otherwise, as the President or the court, respectively, shall deem sufficient to insure that the plaintiff will redeliver to the Alien Property Custodian such portion of the money or other property sought to be recovered as shall be distributable to any person not eligible as a claimant under subsections (a) and (c) of section 9 of the Trading with the Enemy Act, as amended. "(4) The plaintiff has not stated facts sufficient to entitle it to equitable relief under section 9 of the Trading with the Enemy Act, as amended." In so far as material to this case, subsection (a) of section 9 provided as follows: "That any person not an enemy or ally of enemy claiming any interest, right, or title in any money or other property which may have been conveyed, transferred, assigned, delivered, or paid to the Alien Property Custodian or seized by him hereunder and held by him or by the Treasurer of the United States, may file with the said Custodian a notice of his claim and the President, if application is made therefor by the claimant, may order the payment, conveyance, transfer, assignment, or delivery to said claimant of the money or other property so held. No contention has ever been made that Wesche was an enemy, and in fact it is conceded that it would have been returned to him, but for his death, which occurred on June 20, 1922. Wesche left a will, executed June 10, 1922, by which he bequeathed three-fourths of his property to Lucie Frost, a French woman, who was and always has been a nonenemy. The remaining onefourth was bequeathed to Wesche's married sister, Amalie Flohr, a German, resident of Cologne, before and throughout the war, and still a resident there. The three-fourths bequeathed to Lucie Frost was delivered to the plaintiff, as ancillary administrator of Frederick Wesche, deceased, it having duly qualified as such administrator; but the government refuses to deliver to the plaintiff the remaining one-fourth bequeathed to Amalie Flohr, unless the plaintiff files with it a bond, on the ground that Mrs. Flohr is an enemy. The plaintiff declines to file such a bond, and has brought this suit as ancillary administrator of Frederick Wesche, deceased, in equity against the Alien Property Custodian and the Treasurer of the United States, under the terms and provisions of subsections (a) and (d) of section 9 of the Trading with the Enemy Act, as amended March 4, 1923 (Comp. St. § 31152e). If the President shall not SO order, said claimant may institute a suit in the District Court of the United States for the district in which such claimant resides, to establish the interest, right, title, or debt SO claimed." Subsection (d) of section 9 of the act is: "Whenever a person, deceased, would have The defendants have filed a motion to been entitled, if living, to the return of his money or other property hereunder, then his legal representative may proceed for the return of such money or other property as provided in subsection (a) hereof: Provided, however, that the President or the court, as the case may be, before granting such relief shall impose such conditions by way of security or otherwise, as the President or the court, respectively, shall deem sufficient to insure that such legal representative will redeliver to the Alien Property Custodian such portion of the money or other property so received by him as shall be distributable to any person not eligible as a claimant under subsections (a) or (c) hereof." Thus, it is provided, I, that the plaintiff must be the legal representative of a person who, if living, would be entitled to the property; II, if the property which it is asked to have returned is distributable to a person who is ineligible to claim under the Trading with the Enemy Act, the plaintiff must then give security. Admittedly, Wesche, if living, would have been entitled to the return of his property; therefore the plaintiff, his legal representative, is entitled to proceed for its return under subsection (d). [1] The next question is whether Amalie Flohr, to whom the property is distributable, is a person ineligible to claim under the Trading with the Enemy Act, or is she an eligible claimant under subsection (a) of section 9, which provides that nonenemies may claim? The property could not be withheld from Wesche, were he living; he had an absolute right to it. Wesche did not die until June, 1922. There had been no "capture." The power of the Alien Property Custodian to make a new seizure under any right of capture expired July 2, 1921. Miller v. Rouse (D. C.) 276 F. 715. Therefore, as Amalie Flohr had no interest in the property until after the possibility of a new seizure by the Alien Property Custodian had expired, there is no tenable ground, it seems to me, upon which the refusal to deliver the property to the plaintiff can be based. Amalie Flohr may claim under section 9 (a) as an alien friend. Section 9 (b) 9 does not apply because, if this section is read in connection with other sections and their subdivisions, as it obviously must be, it is clear that section 9 (b) 9 applies to one who was "at such time a citizen of Germany "-such time referring to the time the property was seized. [2] The Joint Resolution of July 2, 1921, and the Treaty of August 25, 1921, dealt only with property which, at that time, be longed to enemies, and not with nonenemy property, which might subsequently be acquired by German citizens, who were not enemies at the time of the acquisition of the property. I think a distinction should be and was intended to be made between seizures where property was enemy property when seized, and property which was not enemy property when seized, but to which a German citizen has become entitled since July 2, 1921. Therefore the defendants' motion to dismiss the bill is denied, and the return of the property in question is directed, without conditions. STEPHENS v. SOUTHERN PAC. CO. et al. (District Court, N. D. California, N. D. October 20, 1926.) 1. Courts No. 359. 374-Whether separable cause of action is shown depends on law of state where negligence occurred. Whether complaint for negligent injury states a separable cause of action depends on law of state where negligence occurred. 2. Removal of causes 49(3)-Under California law, cause of action against railroad and alleged negligent servant is separable. Under law of California, a railroad liable under doctrine of respondeat superior for negligence of its servant is not a joint tort-feasor as affecting right to removal on ground that complaint states a separable cause of action. At Law. Action by Mary E. Stephens, administratrix of the estate of Thomas R. Stephens, otherwise known as Tom Stephens, deceased, against the Southern Pacific Company and another. On motion to remand after removal to federal court by Motion denied. named defendant. Martin I. Welsh, of Sacramento, Cal., for plaintiff. Devlin & Devlin and William H. Devlin, all of Sacramento, Cal., for defendant Southern Pac. Co. KERRIGAN, District Judge. Plaintiff herein seeks to hold the Southern Pacific Company, a nonresident corporation, and one of its resident employees, for an act of negligence alleged to have been committed by the latter. The case has been removed to this court on the theory that a separable cause of action is stated against the corporation, and at the present time is before me on motion to remand; the plaintiff's contention being that the negligence charged is joint, and |