ment officials that the article was misbranded it is alleged the dealer who sold the same in interstate commerce established the guaranty of the defendant; whereupon this information was filed.

The defendant's demurrer alleges that the information sets forth no charge or offense for which the defendant can be convicted and punished under the act of Congress approved June 30, 1906, because the ninth section, upon which the information is based, is unconstitutional. Under the second section of this act the introduction into interstate commerce of adulterated or misbranded foods is prohibited, and any person violating this provision is guilty of a misdemeanor, subject to certain fines and penalties. The ninth section is as follows:

"That no dealer shall be prosecuted under the provisions of this act when he can establish a guaranty signed by the wholesaler, jobber, manufacturer or other party residing in the United States from whom he purchased such articles, to the effect that the same is not adulterated or misbranded within the meaning of this act, designating it. Said guaranty to afford protection shall contain the name and address of the party or parties making the sale of such articles to such dealer, and in such case said party or parties shall be amenable to the prosecutions, fines and other penalties which would attach in due course, to the dealer under the provisions of this act."

The defendant in this case is charged in the information with having executed and delivered to the dealer who sold the adulterated and misbranded food in interstate commerce the following guaranty, which is alleged to be false:

"We, the vendors of the articles mentioned in the foregoing invoice, hereby guarantee and warrant the same to be in full conformity with the federal act of June 30, 1906, known as the 'Food and Drug Act,' * in that the said articles are not adulterated or misbranded within the meaning of the aforesaid act of Congress."

It is not contended by the defendant that Congress has no constitutional right to prohibit the introduction of adulterated and misbranded foods in interstate commerce; but the claim is that, so far as the defendant's connection with the adulterated and misbranded goods was concerned, the entire transaction of manufacturing, selling, and delivering by it was consummated within the state, as was the issuance of the false certificate, and, as the defendant's connection with the article was entirely within the state, the fact that the certificate indicates that the adulterated and misbranded commodity was intended for interstate commerce can make no difference, because the federal courts could have no jurisdiction, whatever the intention of the manufacturer might be, until such goods had been shipped or entered with a common carrier for transportation to another state, or had been started upon such transportation in a continuous route or journey— and cites Kidd v. Pearson, 128 U. S. 1, 9 Sup. Ct. 6, 32 L. Ed. 346.

There is nothing in the act to indicate that there is an effort on the part of Congress to regulate the manufacturing, selling, or delivering of any articles of food within the states. The act is intended to prevent adulterated and misbranded foods from being sold in interstate commerce-nothing more; and in order that this may be accomplished it prohibits the party who makes or manufactures the food, and who knows what it contains, from falsely assuring an innocent

purchaser that its quality and dress lawfully entitles. him to sell the commodity in interstate commerce. Such a certificate, made by a defendant expressly under the provisions of the act, if false, could have been made with no purpose other than to defeat the object of the act. This prohibition is obviously essential to the enforcement of one of the important powers with which Congress is intrusted, to wit, the regulation of interstate commerce. To punish the dealer who sells the article in another state will not in all cases reach the evil sought to be remedied. He may be entirely innocent of any intention of selling an adulterated or misbranded food, because he may be unable to tell the difference between a pure article and one adulterated, and dealers cannot be expected to employ expert chemists to examine the great variety of commodities which enter into commerce and are dealt in by them; but the evil can soon be cured if the innocent dealer may shift the responsibility for the purity of the commodity to the manufacturer, by requiring him to certify to the effect that the article is not adulterated or misbranded, when the manufacturer knows he will be subjected to punishment in case he gives a false certificate prohibited by the act.

In the case of United States v. Fox, 95 U. S. 670, 24 L. Ed. 538, in passing upon the provision in the bankrupt law which made it a misdemeanor, punishable by imprisonment, for obtaining goods under false pretense with intent to defraud, within three months of the commencement of bankruptcy proceedings, the court held that, as this would be no offense under the act of Congress at the time of the commission of the false pretense, any subsequent independent act by the party himself or a third party in instituting bankruptcy proceedings could not make it a crime punishable in the federal courts. In the discussion of the question, it was said by Justice Field that:

"The criminal intent essential to the commission of a public offense must exist when the act complained of is done. It cannot be imputed to a party from a subsequent independent transaction. There are cases, it is true, where a series of acts are necessary to constitute an offense, one act auxiliary to another in carrying out the criminal design."

In this case, the criminal intent essential to the commission of the offense existed at the time defendant gave the certificate, specifying that it was under the pure food act of Congress of June 30, 1906. With what purpose and intent was the certificate given, other than for the purpose of evading the provisions of this act of Congress? It is averred defendant made and knew the goods were both adulterated and misbranded, and with this knowledge gave a certificate that they were not adulterated or misbranded, in order that an innocent purchaser might sell them in interstate commerce, and, in this case, the purpose of the certificate was accomplished. The dealer did just what the defendant intended he should do; that is, the dealer, relying on the certificate, sold the articles in another state. "Any act committed with a view of evading the legislation of Congress, passed in the execution of any of its powers, or of fraudulently securing the benefit of such legislation, may properly be made an offense against the United States." U: S. v. Fox, supra.

Demurrer overruled.

ATLANTIC COAST LINE R. CO. v. DANIELS. SAME v. WILSON. SAME V. WEEMS.

(Circuit Court, S. D. Georgia, E. D. July 16, 1909.)

1. COURTS (8508*)-State COURT PROCEEDINGS-COURTS OF CONCURRENT JU

RISDICTION.

A federal court, except on the plainest grounds of imperative necessity, will not enjoin a proceeding in a state court of concurrent jurisdiction, properly pending therein, where on the face of the record it appears that the action in the state court is not removable, and there has been no fraudulent attempt to defeat the federal court's jurisdiction.

[Ed. Note.-For other cases, see Courts, Cent. Dig. §§ 1418-1430; Dec. Dig. § 508.*

Enjoining proceedings in state courts, see note to Garner v. Second Nat. Bank, 16 C. C. A. 90; Central Trust Co. v. Grantham, 27 Ɑ C. A. 575; Copeland v. Bruning, 63 C. C. A. 437.]

2. REMOVAL OF CAUSES (§ 36*)-JOINDER OF DEFendants-Purpose.

Where on the face of the record plaintiff appears to have a cause of action against each of the defendants joined, one of whom is a resident of the same state as plaintiff, it is not material that the actual purpose of plaintiff in joining the resident defendant was to prevent a removal of the cause to the federal courts.

[Ed. Note. For other cases, see Removal of Causes, Cent. Dig. § 79; Dec. Dig. § 36.*

Fraudulent joinder of parties to prevent removal, see note to Offner v. Chicago & E. R. Co., 78 C. C. A. 362.]

In Equity. Suits by the Atlantic Coast Line Railroad Company against Dr. John W. Daniels, Mrs. Hattie W. Wilson, and Golden Weems. Application for an injunction restraining the prosecution of the suits pending in the state court.' Denied.

Garrard & Meldrim, for plaintiff.
Osborne & Lawrence, for defendants.

SPEER, District Judge (orally). The bills presented call for the exercise on the part of the court of a power, which, while it may exist, should never be exercised except upon the plainest grounds of necessity, imperative necessity at that, and that is the power to enjoin a proceeding in a court of concurrent jurisdiction. It is true that the application is directed merely against the parties before the court, but it is nevertheless in all essential respects a proceeding to enjoin the prosecution of a case pending in the state court. It is made to a court of the United States, and the doctrines of comity which exist between those courts are applicable here as they are applicable in all cases where any question arises of conflicting or concurring jurisdiction. Now, when we look at the record in this case, we see before his honor, Judge Freeman, in the city court of Savannah, a suit on the face of which he clearly had jurisdiction. It is against two or more tort-feasors. In each case they are alleged to have inflicted the injuries for which the actions are brought. A petition for removal is filed on behalf merely

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

of one of the defendants; that is, the nonresident railway company. It is based upon the ground only of diversity of citizenship. Nothing is said before Judge Freeman about sham defendants. Nothing is said in the petition for removal about a fraudulent scheme to defeat the jurisdiction of the United States court, and, a citizen of Georgia being a party defendant, that eminent jurist, on the record before him, I think, properly refused to remove the cases. Then an application is made to this court, entirely independently of the proceeding before him, on what is termed an "ancillary bill," for an injunction, and upon the averments that there are sham defendants, and the like, we are asked to enjoin the proceeding in the state court.

It does not occur to me that this is a case where that power should be exercised. It could be exercised. It was exercised in the case of Bailey (Atlantic Coast Line Ry. Co. v. Bailey [C. C.] 151 Fed. 891), so frequently referred to by counsel for complainants, but in that case it appeared from the face of the record that there was no cause of action against one of the defendants joined. That is not this case. Here, on the face of the record, the plaintiffs appear to have a case against each of the defendants joined. It may be that counsel had in mind the joining of these defendants to keep the case in the court which they preferred and to defeat the jurisdiction of this court. If, however, they are substantial defendants, if they really and actually, as alleged, contributed to the injury, it does not appear to me that plaintiffs are denied their legal right to have such wrongful conduct passed on in the state court.

The plaintiffs, then, are not denied their legal right to bring an action against such defendants and join them with the nonresident company. Each case must depend on its own facts and pleadings, and while, if it appeared from the face of the record before Judge Freeman that there were sham defendants, and that there was a fraudulent attempt to defeat the jurisdiction of this court, we might be obliged to grant the injunction, it does not appear so here, I think, therefore, that the defendants should be remitted to the usual procedure of an appeal, from Judge Freeman's decision refusing the order of removal, to the Supreme Court, or other proper appellate court of the state, and this court should not be called upon to do the always exciting and friction creating act of issuing an injunction against a proceeding in a court of concurrent jurisdiction. For these reasons, the injunction will be denied.

CRADDOCK-TERRY CO. et al. v. KAUFMAN.

(District Court, W. D. Texas, San Antonio Division. December 24, 1909.) No. 457.

1. BANKRUPTCY (§ 228*)-CERTIFICATE OF REFEREE.

A certificate of a referee in bankruptcy, reciting that the alleged involuntary bankrupt, on being subpoenaed on an application for the appointment of a receiver before adjudication, refused to submit to examination, and requesting an adjudication of her obligation so do to, could For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

not be considered as a petition to review the findings of the referee, since it contained neither a ruling nor an order made by him; and also failed to comply with the requirements of General Order 27 (89 Fed. xi, 32 C. C. A. xxvii).

[Ed. Note. For other cases, see Bankruptcy, Dec. Dig. § 228.*]

2. BANKRUPTCY (§ 235*)-CERTIFICATE OF REFEREE.

A certificate of a referee in bankruptcy that the alleged involuntary bankrupt refused to submit to examination before adjudication on an application for a receiver could not be sustained as an application of creditors for an order to examine the bankrupt as a witness.

[Ed. Note. For other cases, see Bankruptcy, Dec. Dig. § 235.*]

In Bankruptcy. Involuntary bankruptcy proceeding by the Craddock-Terry Company against Mrs. R. Kaufman. On certificate of referee. Dismissed.

The following certificate was presented to the court by the referee in bankruptcy:

"I, Guy S. McFarland, the referee in bankruptcy in charge of this proceeding, do hereby certify that in the course of such proceeding, upon the hearing of the application for a receiver filed by petitioning creditors, petitioning creditors endeavored to examine the alleged bankrupt, Mrs. Rachel Kaufman, concerning the issues formed in the application for receiver and the answer thereto filed by Mrs. Kaufman.

"Counsel for Mrs. Kaufman objected to such examination upon the theory that, under section 21a of the bankruptcy act, prior to adjudication an alleged bankrupt may not be required to submit to an examination, citing in support of their contention In re Davidson [D. C.] 19 Am. Bankr. Rep. 833 [158 Fed. 678], and [Skubinsky v. Bodék (C. C. A.)] 22 Am. Bankr. Rep. 689 [172 Fed. 332]. To follow these decisions and the rules therein stated would defeat the majority of applications for receivers in involuntary cases, but I have been unable to find any authority to the contrary.

"I therefore certify the question to your honor in the hope that I will be able to get a decision from you in time to be of use, if not in this case, in the case of In re Milgrom, in which an application for receiver has been filed and referred to me, with certificate of your honor's absence from this division. "No adjudication has yet been had in either of these cases." Cocke & Cocke and G. O. Brown, for petitioning creditors. Birkhead & Booth and Shook & Vanderhoeven, for interveners.

MAXEY, District Judge. By section 41a, cl. 4, of the Bankruptcy Act (Act July 1, 1898, c. 541, 30 Stat. 556 [U. S. Comp. St. 1901, p. 3437]), it is provided:

refuse to ap

"A person shall not in proceedings before a referee pear after having been subpoenaed, or, upon appearing, refuse to take the oath as a witness, or, having taken the oath, refuse to be examined according to law."

And it is further provided, among other things, by section 41b, that: "The referee shall certify the facts to the judge, if any person shall do any of the things forbidden in this section," etc.

As it does not appear that the alleged bankrupt, Mrs. Kaufman, did any of the things forbidden by that part of the act quoted, the conclusion is quite evident that the certificate of the referee was not based upon that section of the act. It is equally clear that the certificate

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes