the parties should stipulate to reduce the amount of the judgment, the order appealed from would be affirmed without costs, and that the parties did so stipulate. It appears that the order of the Appellate Division provided that unless the plaintiff Title Guaranty & Trust Company and the defendant Kings County Trust Company should. stipulate to modify the judgment the order appealed from would be affirmed. The plaintiff Title Guaranty & Trust Company and the defendant Kings County Trust Company did so stipulate. This in no way affects the determination heretofore made, CITY NAT. BANK OF SELMA v. DRESDNER BANK OF BREMEN. (District Court, S. D. Alabama. January 28, 1919.) No. 42. 1. WAB 10(2)—TRADING WITH ENEMY ACT-ACTION-DEBTOR-BANKS— DEPOSITS. Within Trading With the Enemy Act, § 9 (Comp. St. 1918, § 31151⁄2e), as to suit by one to whom a debt is owing by an enemy, a bank in which the proceeds of sale of a shipment of cotton were deposited for the benefit of the owner of the cotton when determined is debtor of complainant, to whom had been assigned the bill of lading, vesting it with the title to the cotton. 2. WAR 10(2)—PROTECTING RIGHTS OF ALIEN ENEMY. Cause against an alien enemy for proceeds of shipment of cotton will be continued till peace is declared, German firms claiming it as owner of the cotton under bills of lading which complainant alleges were forged. In Equity. Suit by the City National Bank of Selma against the Dresdner Bank of Bremen. On motion to dismiss bill. Motion overruled, and cause continued. Pettus, Fuller & Lapsley, of Selma, Ala., for plaintiff. Alexander D. Pitts, U. S. Dist. Atty., of Selma, Ala., for defend ant. ERVIN, District Judge. This matter comes on to be heard on a motion filed by the Alien Property Custodian and the Treasurer of the United States to dismiss the bill for want of equity. The bill is filed under the provisions of section 9 of an "Act to define, regulate and punish trading with the enemy and for other purposes," commonly known as the "Trading with the Enemy Act (Act Oct. 6, 1917, c. 106, 40 Stat. 419 [Comp. St. 1918, § 31151⁄2e]). Section 9 of said act, when all its provisions not bearing upon the question here sought to be raised are eliminated, reads as follows: "That any person, not an enemy, to whom any debt may be owing from an enemy whose property shall have been delivered or paid to the Alien Property Custodian and held by him or by the Treasurer of the United States, may file with said custodian a notice of his claim under oath; that said claimant, at any time before the expiration of six months after the war, may institute a suit in equity in a District Court of the United States for the district in which such person resides, or, if a corporation, where it has For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 255 F.-15 its principal place of business, against the Alien Property Custodian or the Treasurer of the United States to establish the debt so claimed, and if suit shall be so instituted, then the money or the property of the enemy against whom such debt is claimed, shall be retained by the Alien Property Custodian or in the treasury of the United States until any final judgment or decree which shall be entered in favor of the claimant shall be fully satisfied by payment by the Alien Property Custodian or Treasurer of the United States, on order of the court, or until final judgment or decree shall be entered against the claimant or suit otherwise terminated." So far as I have been able to ascertain, there have been no constructions of this act by the courts, and it is therefore a question of first impression with me. The contention is made that the provisions of the bill as filed do not bring it under the terms of this act, because it is contended that the bill fails to allege any debt owing plaintiff by the Dresdner Bank, whose assets are alleged to be in the custody of the Treasurer of the United States and of the Alien Property Custodian. It therefore becomes necessary to consider the facts stated in the bill, which are briefly as follows: That plaintiff is a corporation organized under the National Banking Laws of the United States, and has its principal place of business at Selma, Ala., within this district: that the Dresdner Bank is a corporation organized under the Imperial German Government, and is an alien enemy; that assets of said bank are now in the possession of the Alien Property Custodian and of the Treasurer of the United States, both of whom reside out of this District; that the amount involved in this suit, exclusive of interest and costs, exceeds the sum of $3,000; that plaintiff has filed with the Alien Property Custodian. a notice of its claim, as provided for in section 9 of the "Trading with the Enemy Act," a copy of which claim is made an exhibit to the bill; that on June 30, 1910, plaintiff owned a lien to the extent of $80,000 on a large amount of cotton which formerly belonged to the bankrupt firm of Knight-Yancey & Co., who bought this cotton with money advanced by plaintiff in accordance with an agreement giving a lien; and, further, that said cotton was shipped to Bremen, Germany, by KnightYancey & Co., who took bills of lading from the Louisville & Nashville Railroad Company to their order, notify Cotton Commission Company, Bremen, Germany; that said bills provided for shipment over the railroad to Pensacola, Fla., thence by steamer to Bremen, Germany; that said bills of lading were then assigned and duly transferred and indorsed to plaintiffs by Knight-Yancey & Co. The cotton was shipped from Selma, and before the time of its arrival in Bremen, Germany, Knight-Yancey & Co. failed, and were adjudicated bankrupts by the District Court for the Northern District of Alabama, and W. S. Lovell was appointed trustee of said firm, and that thereafter the said Lovell, as trustee, did, by an instrument in writing, transfer and assign to the complainant all of the right, title, interest, and claim of the said bankrupt estate to said cotton. That upon the arrival of the cotton in Bremen, Germany, certain German firms, all of whom are alien enemies of the United States, and residing in Bremen, Germany, to wit, Knoop & Fabrius, C. A. Gruner & Co., Gebr Fritzie & Co., claimed said cotton under forged bills of lading, alleged to have been issued by Knight-Yancey & Co., without authority of the Louisville & Nashville Railroad Company, or the steamship company on whose ship said cotton was shipped, and that said cotton was sold in Bremen, Germany, and the proceeds deposited in the branch of the Dresdner Bank at Bremen for the benefit of the owner of said cotton when determined. [1] Do these allegations show that the Dresdner Bank is indebted to plaintiff? "It is no longer an open question in this court, since the decision in the cases of Marine Bank v. Fulton Bank [2 Wall. 252, 17 L. Ed. 785], and of Thompson v. Riggs [5 Wall. 663, 18 L. Ed. 704], that the relation of banker and customer, in their pecuniary dealings, is that of debtor and creditor. It is an important part of the business of banking to receive deposits, but when they are received, unless there are stipulations to the contrary, they belong to the bank, become part of its general funds, and can be loaned by it as other moneys. The banker is accountable for the deposits which he receives as a debtor, and he agrees to discharge these debts by honoring the checks which the depositors shall from time to time draw on him. The contract between the parties is purely a legal one, and has nothing of the nature of a trust in it. This subject was fully discussed by Lords Cottenham, Brougham, Lyndhurst, and Campbell, in the House of Lords, in the case of Foley v. Hill, and they all concurred in the opinion that the relation between a banker and a customer, who pays money into the bank, or to whose credit money is placed there, is the ordinary relation of debtor and creditor, and does not partake of a fiduciary character, and the great weight of American authority is to the same effect." Bank of the Republic v. Mullard, 77 U. S. (10 Wall.) 155, 19 L. Ed. 897; Alston v. State, 92 Ala. 124, 9 South. 732, 13 L. R. A. 659; Batson v. Alexander State Bank, 179 Ala. 490, 60 South. 314. Under the allegations of this bill, the assignment of the bills of lading to plaintiff vested plaintiff with the title to the cotton, and when this cotton was sold, and its proceeds deposited in the bank for the benefit of the owner of said cotton when determined, this money belonged to the owner, who could sue the bank under indebitatus assumpsit for it. I am therefore of the opinion that the motion to dismiss should be denied. [2] I do not feel, however, that I ought to go further at the present time in this case, because, while the allegations of the bill are that the German firms claimed the cotton under forged bills of lading, I cannot anticipate what the proof on this subject may be, and I should not undertake to pass upon the rights of these German firms until peace is declared between the United States and Germany, at which time they can come in and propound their claims and offer their testimony in support thereof. Kaiser Wilhelm, 246 Fed. 786, 159 C. C. A. 88, L. R. A. 1918C, 795; Watts, Watts & Co., Ltd., v. Unione Austriaca Di Navigazione, etc., 248 U. S 9, 39 Sup. Ct. 1, 63 L. Ed. —. An order will therefore be entered overruling the motion to dismiss the bill and continuing the cause during the continuance of a state of war between the United States and Germany, and a certified copy of this order will be served on A. Mitchell Palmer, as Alien Property Custodian, and on John Burke, as Treasurer of the United States, as the act requires them to hold the property of the alien enemy until the termination of this suit. UNITED STATES v. 1,590 CASES OF TOMATO PULP. No. 5620. 1. FOOD 2-PENAL STATUTE-CONSTRUCTION. Food and Drugs Act June 30, 1906 (Comp. St. §§ 8717-8728), being highly penal, District Court cannot read into it imposition of anything which partakes of nature of punishment, not to be found in law. 2. COURTS 78-RULES GOVERNING PRACTICE-POWER OF SUPREME COURT. Supreme Court of United States has statutory authority to indicate and promulgate rules to govern admiralty practice, which power it has exercised. 3. FOOD 24-LIBEL UNDER FOOD AND DRUGS ACT-Costs. Under Food and Drugs Act June 30, 1906 (Comp. St. §§ 8717-8728), on libel of tomato pulp by United States, intervening claimants, who did not stipulate to pay costs and expenses, expense of custody having exceeded all money value involved, so that they acquiesced in government's securing decree of destruction, were not subject to decree in personam for costs, despite rule 26 of Supreme Court (29 Sup. Ct. xlii). Proceeding by the United States against 1,590 Cases of Tomato Pulp. On the government's motion for decree for costs. Motion denied. Francis Fisher Kane, U. S. Atty., and Robert J. Sterrett, Asst. U. S. Atty., both of Philadelphia, Pa. Chester N. Farr, Jr., of Philadelphia, Pa., for defendant. DICKINSON, District Judge. This proceeding is founded upon the Food and Drugs Act of June 30, 1906, c. 3915, 34 Stat. 768 (Comp. St. §§ 8717-8728). The record discloses a libel and answer. The issues thus raised were never determined, because of a very practical situation which arose. The obstacle thus presented to the proceedings being pushed to a conclusion was borne of the fact predicament that the expense of the custody of the things which had been seized exceeded all money value which the questions at issue could possibly have to the respondents. In consequence of this they acquiesced in the government's securing a successful conclusion of the proceedings. The question of expense had by this time become of such practical importance that the United States now asks for a decree in personam against the respondents for costs, included in the taxation of which is the expense to which reference has been made. The respondents deny such personal liability. A working arrangement was then reached by which the proceedings could terminate in a decree in favor of the United States, with this question of the liability of the respondents reserved to be determined by the court. This presents the question involved in the present motion. The Food and Drugs Act, among its obvious purposes and objects, has in view the condemnation of food articles, if unfit for consumption as food. The act contemplates the seizure of the articles, and eventually their possible destruction after condemnation. There is at provision for the further possible fact situation that the articles, al For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes though properly subject to condemnation because unfit for food consumption, may have. a value for other uses, and any claimant of the articles may have possession of them by giving bond that no future use of them will be made which is prohibited by law. The proceedings are initially by libel, and by the tenth section of the act are required to conform "as near as may be" to proceedings in admiralty. There would seem to be no doubt that the proceeding in the first instance is one in rem. The practice indicates this by the libel being filed wholly against the rem. The question arising in this case does not ordinarily arise, for the reason that, when a claimant intervenes, he accompanies his intervention with a bond, under the conditions of which he has made himself responsible for costs. His liability is in further consequence a contractual liability, and hence no question of its existence arises. In the present case no such bond was given, and its absence is the absence of contractual liability. The question before us, therefore, is not whether the claimant is liable for costs, when he has agreed to be so liable, but whether he is liable without such an agreement; in other words, whether in a proceeding in rem a decree in personam for costs can be entered against him. Notwithstanding that the proceeding in its origin is a proceeding in rem, as under section 10 it is to follow like proceedings in admiralty, and as we have in admiralty practice proceedings both in rem and in personam, and a proceeding which begins as a proceeding in rem may be transformed into a proceeding in personam, the like change may occur in these proceedings. [1] We thus reach one of the subsidiary questions which arises. The Food and Drugs Act is not only unquestionably a penal statute, but it is highly penal. We therefore cannot read into it the imposition of anything which partakes of the nature of punishment which is not to be found in the law. Moreover, in looking for the meaning of the law in the sense of what was intended by Congress, as it is evidently intended that property may be destroyed, and therefore whatever value it has be lost to the owner, it is fair to assume that, if Congress had intended that, in addition to suffering this loss, the owner should also be at the expense of the proceedings, it would have so enacted in clear terms. It would follow from this that liability for costs, if not to be found directly in the act itself, could not be found by indirect search for it in the admiralty practice. [2] The Supreme Court has unquestioned statutory authority to enact and promulgate rules to govern admiralty practice. This power it has exercised. A pertinent rule is rule 26 (29 Sup. Ct. xlii). This relates to proceedings in rem. It contemplates that some one may intervene in the person of a claimant of the property libeled, and requires in the making of any such claim that he shall file a stipulation, with sureties, for the payment of costs and expenses, the payment of which by him may ultimately be decreed. [3] This rule in its terms is of no aid to us, because, in the pres ent case, no such stipulation was entered. Counsel for the United States seem to concede that the liability for costs, if any rests upon the following propositions: The rules promulgated by the Supreme |