believing same subject to seizure. No construction of this section has been found, save that by Judge Benedict, in the case of The Joshua Leviness, 9 Ben. 339, Fed. Cas. No. 7,549, where that learned judge expressed the view that the authority to make seizure without the district is of merchandise found upon a vessel seized under section 3059, Rev. St. [U. S. Comp. St. 1901, p. 2006]. We need express no opinion upon this subject. But there is no authority which authorizes a collector who finds smuggled property in one district to carry it into another for the purpose of changing the situs of seizure and adjudication. Section 3086, Rev. St. [U. S. Comp. St. 1901, p. 2015], provides that when an article is seized it shall be placed "in the custody of the collector or other principal officer of the customs of the district in which the seizure shall be made, to abide adjudication by the proper tribunal. * *""

*

The dictrict of seizure is the district in which the suspected article, if merchandise on land, is found. The proper district for an adjudication of forfeiture is the district in which the seizure was made. The Abby, 1 Mason, 360, Fed. Cas. No. 14; Four Packages v. United States, 97 U. S. 404, 24 L. Ed. 1031. These articles were found in the Southern District of New York. If, as now claimed, the collector for the Northern District of Ohio had authority to seize them wherever found, he should have seized them where in fact he found them, and then placed them in the custody of the collector of the port of New York, to hold until adjudication. But he neither seized the jewels, unless his breach of trust in not returning them as he promised to do, be regarded as an official seizure, nor returned them to the possession of the claimant, but carried them to his own district and there went through the form of a seizure. That he took them to his own district in order to determine whether they were subject to seizure, cannot affect the question of jurisdiction. They had been found in New York, and should have been seized there. The fact that evidence important to identify them was in Cleveland, and that it was necessary to carry the jewels to that point for identification, should not, under the circumstances of this case, affect the jurisdiction of seizure and adjudication. When Leach received these jewels, he did so as a collector. So ran his receipt. If he carried them out of the district where they were found for the purpose of identification, he did so in breach of his agreement and should not be suffered to say now that he "found" them in Cleveland and there' seized them. Judgment affirmed.

VICKSBURG WATERWORKS CO. v. MAYOR, ETC., OF CITY OF VICKSBURG.

(Circuit Court of Appeals, Fifth Circuit. April 25, 1907.)

APPEAL FINAL ORDER.

No. 1,641.

Complainant, having obtained an injunction against the maintenance of certain suits in a state court affecting its water rights and right to cut off service in order to coerce payment of back debts, filed a bill, the obJect of which was to have defendants made parties to the original bills,

and to obtain against them a perpetual injunction restraining further prosecution of certain suits which defendants had brought in a state court for the same purpose. Held, that a order modifying a temporary restraining order against defendants, so as to permit them to prosecute their suits in the state court with reference to questions not determined in the prior proceedings, but not determining the cause on the merits nor ordering that the bill or motion be dismissed, was not a final order from which an appeal could be taken.

[Ed. Note.-Finality of judgments and decrees for purposes of review, see note to Brush Electric Co. v. Electric Imp. Co. of San Jose, 2 C. C. A. 379; Central Trust Co. v. Madden, 17 C. C. A. 238; Prescott & A. C. Ry. Co. v. Atchison, T. & S. F. R. Co. et al., 28 C. C. A. 482.]

Appeal from the Circuit Court of the United States for the Southern District of Mississippi.

In certain suits, No. 41, and ancillary proceedings thereto, No. 79, of the docket of the Circuit Court, entitled Vicksburg Waterworks Company v. Mayor and Aldermen of the City of Vicksburg, theretofore brought and decided, the last branch of the same being now pending in the Supreme Court of the United States, the Vicksburg Waterworks Company, complainant, filed a so-called motion making new and additional parties defendant, praying for a perpetual injunction and for a rule upon such defendants to show cause why they should not be attached for contempt for the violation of the decrees of the court theretofore rendered and of the injunctions granted in such cases, and for reasons gave a full statement of the previous litigation and the decrees rendered therein. The decree in No. 79 was particularly set forth as follows:

"This cause coming on to be finally heard at this the January term, 1906, of this court, upon the original bill of complaint and the answer of the defendant thereto, and all of the exhibits which are made such, to said original bill of complaint and said answer, and all of the other pleas and proceedings in this cause, together with a certified copy of the charter of the said Vicksburg Waterworks Company, which is filed in the records as evidence in this cause, also the petition of defendant for a modification of the temporary injunction granted in this cause, so that the complainant shall not be authorized to cut off water from its patrons who refuse to pay the rates of complainant, claiming the right to have the injunction modified by virtue of the ordinances of the defendant, fixing water rates; and the motion of complainant to have said injunction granted heretofore made perpetual, and the court having heard the argument of counsel, and being fully advised in the premises, and being satisfied that the complainant is entitled to the relief prayed for in its bill of complaint and for full relief, it is thereupon finally ordered, adjudged and decreed: "First. That the defendant, the mayor and aldermen of the city of Vicksburg, be and is hereby denied the relief prayed for in its petition, to wit: That the injunction be modified so that the mayor and aldermen of the city of Vicksburg shall not be restrained from enforcing the ordinances passed by them fixing the water rates and prescribing rules and regulations of the Vicksburg Waterworks Company, and that the Vicksburg Waterworks Company shall not be permitted to cut off patrons' water, provided patrons pay the rates fixed in said ordinances.

"Second. That said defendant be and is hereby enjoined from enforcing the said three ordinances described in said bill, to wit: An ordinance entitled 'An ordinance to fix and prescribe maximum rates and charges for water supplied to the inhabitants of the city of Vicksburg whether measured by meters, and for other purposes,' approved the 20th day of April, 1904; an ordinance entitled 'An ordinance to fix and prescribe maximum flat rates and charges for the supply of water to consumers in the city of Vicksburg and for other purposes,' approved the 20th day of April, 1904; and an ordinance entitled An ordinance to require waterworks, gas and electric light companies to present bills before charging damages for a failure to pay them when due,' approved the 8th day of December, 1903, so far as the latter relates to complainant.

"Third. That the restraining order heretofore granted in this cause on the 11th day of January, 1905, be, and the same is hereby, made perpetual.

"Fourth. That said defendant be, and is hereby, enjoined from in any manner interfering with complainant's contract rights under its said contract with the city of Vicksburg entered into between Samuel R. Bullock & Co. and said city under the ordinances of November 19, 1886.

"Fifth. That the defendant be, and is hereby, enjoined from interfering with the rules and regulations of complainant, the Vicksburg Waterworks Company, and the water rates for the inhabitants of the city of Vicksburg now in force, established by the Vicksburg Waterworks Company.

"Sixth. That said defendant be, and is hereby, enjoined from interfering with the water rater known as 'flat rates,' now in force established by the Vicksburg Waterworks Company.

"It is further ordered, adjudged, and decreed that the defendant pay all costs of this cause.

"Finally ordered, adjudged, and decreed this the 3d day of January, A. D. 1906.

Among other things, it was averred:

"H. C. Niles, Judge."

"Your orator would show that notwithstanding the decree and injunctions of this honorable court, as hereinabove set forth, and notwithstanding that the Supreme Court of the state of Mississippi has decreed that suits of the character of the suits filed by defendants can not be brought in the state courts, and notwithstanding defendants full knowledge of all the proceedings hereinabove set forth, the said defendants, either as complainants, or as attorneys for complainants, as will be hereinafter more particularly stated, have willfully and maliciously filed suits in the chancery court of Warren county, Miss., based on alleged invalidity, illegality, and unreasonableness of various of your petitioner's rates, rules, and regulations and have obtained temporary injunctions, some prohibitory, and some mandatory, restraining your orator from enforcing its rates, rules, and regulations, and especially the cutting off of the water from defendants' premises for nonpayment of back bills, commanding defendant to turn on the water again where it has been cut off because of the nonpayment of past due bills of defendants, thereby willfully, maliciously, and unlawfully committing acts in violation of said decrees and injunctions of this honorable court."

The complaint then proceeds with argumentative averments showing the right of the complainants to enforce its rules and regulations, and how the defendants were in contempt, and the said motion concludes with the following prayer:

"Wherefore, your orator prays that your honorable court grant an order requiring defendants J. C. Bryson, J. B. Dabney, Harris Dickson, A. O. Hardenstein, Mrs. Thos. II. Dickson, T. M. Searles, G. W. Crock, Lizzie Sanguinetti, Annie Sanguinetti, Mary Sanguinetti, Delia Lanceskes, and Lena Youngblood to show cause why they should not be attached for contempt of this court in violating said decrees and injunctions in said suit No. 41, and said suit No. 79, ancillary thereto, and upon the petition of your orator to grant said alias and pluries writs of injunction which were issued on the 2d day of April, 1906, upon petition of your orator, by filing their bills of complaint containing the said contemptuous averments in the chancery court of Warren county, Miss., as aforesaid; and that they and each of them, their agents, servants, and attorneys, be restrained by order of this court from proceeding further in the prosecution of said suits in the chancery court of Warren county, Miss., until this motion for contempts shall have been heard and a final order made herein; and that, upon said final hearing hereof, they and each of them, their agents, servants, and attorneys, may be perpetually restrained from further prosecution of said suits or any of them; and that your orator may be awarded its said damages in the sum of $675 to be paid by said defendants, and such other and further damages as your orator may suffer hereafter in the premises; and that the costs of this proceeding be required to be paid by defendants. And for such other and further relief as the facts may demand, and as in duty bound your orator will ever pray," etc.

Upon this motion, the judge made the following order:

"To the Clerk of the Circuit Court of the United States for the Southern District of Mississippi:

"You will issue a restraining order commanding the said defendants in the foregoing motion to refrain from doing any further act in further prosecution of the said suits in the chancery court of Warren county, Miss., which are named in said motion, until the further order of this court. And you will also issue an order commanding said defendants to appear before this court on the first Monday in November, 1906, unless another time and place shall be fixed upon application of said defendants, by order of this court, and show cause, if any, as prayed for in said motion, why they should not be attached for contempt for violating the decrees and injunctions heretofore rendered and issued in said suits in this court entitled 'Vicksburg Waterworks Company V. Mayor and Aldermen of the City of Vicksburg,' No. 41, equity, and said suit known as No. 79 of the same title, ancillary to said No. 41, as set out in said motion.

"Sept. 1st, 1906.

H. C. Niles, Judge."

The several respondents filed an answer to the motion, and also a demurrer to the same. The answer is lengthy, and puts at issue many facts alleged in the motion.

The demurrer gave as grounds: First. That it does not appear from the said complaint that the said respondents or any of them were parties to either sait No. 41 or No. 79, equity, the decrees whereof are alleged to have been violated by said parties respondent; second, that the said complaint is otherwise insufficient in law to charge defendants with, contempt or any other misde

meanor.

On a day fixed, the matter came on to be heard, and the following decrees were rendered:

"Vicksburg Waterworks Co. v. Mayor and Aldermen of the City of Vicksburg. Nos. 41 and 79, Eq.

"Decree in Contempt Proceedings.

"This day this cause coming on to be heard on petition of complainant and exhibits, and the answer of defendants and exhibits, upon motion to dissolve the restraining order heretofore granted herein, and the court having heard the argument of counsel for the respective parties, and having considered the matter, it is thereupon ordered, adjudged, and decreed that said restraining order be and the same is hereby modified in the following particulars, to wit: The defendants herein shall be permitted to prosecute said suits heretofore filed by them against complainants in the chancery court of Warren county, Miss., in so far as they, and upon the allegations in the several bills contained which, do not contravene and are not in conflict with any of the rates, rules, and regulations of complainant the Vicksburg Waterworks Company, which are made Exhibit A, to its petition herein and heretofore adjudicated by this court to be reasonable. But any other questions contained in said suits, this court does not restrain said defendant from trying in the chancery court of Warren county, or in any other county, or in any other court or county. And the court is further of the opinion that in cases where there is a claim for arrears due on a water bill from the consumer to the waterworks company, and the consumer tenders payment for future services under the rules and regulations of the complainant waterworks company, that the said waterworks company has no legal right to cut off the water of said consumer solely for the purpose of coercing payment for prior service; but the said waterworks company must proceed to collect the past due indebtedness as other debts collected under the law.

"It is therefore ordered, adjudged, and decreed that the said restraining order be modified in accordance with these views, and to that extent dissolved and vacated, and that complainants pay the costs of this proceeding. “Ordered, adjudged and decreed this the 14th day of November, 1906. "H. C. Niles, Judge."

"Vicksburg Waterworks Co. v. Mayor and Aldermen of the City of Vicksburg. Nos. 41 and 79. Equity.

"The above-styled matter coming on to be heard on the motion of the complainant, the Vicksburg Waterworks Company, to have the defendants J. C. Bryson, J. B. Dabney, Harris Dickson et al. cited to show cause why they should not be punished as and for a contempt, and upon the demurrer of the said defendants to the said motion, and the court, having heard and considered the said motion on the said demurrer, is of the opinion that the said demurrer is well taken, and that the said motion should be dismissed in so far as it charges contempt against the said parties.

"It is therefore ordered, adjudged, and decreed that the said demurrer be sustained, and that said defendants named in said petition be, and they are hereby, purged of contempt by reason of the matters and things set forth and charged in said motion, and that complainant pay the cost of this proceeding. “Ordered, adjudged, and decreed this the 14th day of November, 1906. "H. C. Niles, Judge."

From these two decrees the Vicksburg Waterworks Company sued out this appeal, assigning many errors in the same.

Robert L. McLaurin, Amos A. Armistead, and E. L. Brien, for appellant.

J. C. Bryson and Harris Dickson, for appellee.

Before PARDEE, MCCORMICK, and SHELBY, Circuit Judges.

After stating the case as above, the opinion of the court was delivered by PARDEE, Circuit Judge.

The appellees move to dismiss this appeal, because neither of the decrees above mentioned is final. At the bar the appellant abandoned the appeal so far as the contempt proceedings are concerned, but insists on the errors assigned as to the first-mentioned decree. Leaving out of consideration the charge of contempt for violation of former decrees, and treating the so-called motion as a bill in equity, the object was to have the respondents made parties defendant in the bills already decreed upon, and to obtain against them a perpetual injunction restraining them from further prosecution of certain suits pending in the chancery court of Warren county, Miss. In the way of passing upon complainant's right to such relief, the Circuit Court issued a temporary restraining order, and thereafter, on a hearing, modified the restraining order. Beyond this modified restraining order, the court has not decided as to the relief the complainant is entitled to, unless it be in the opinion and ruling found in the modifying order, to wit:

"And the court is further of the opinion that in cases where there is a claim for arrears due on a water bill from the consumer to the waterworks company, and the consumer tenders payment for future service under the rules and regulations of complainant waterworks company, the said waterworks company has no legal right to cut off the water of said consumer solely for the purpose of coercing payment for prior service; but the said waterworks company must proceed to collect the past due indebtedness as other debts collected under the law."

It is contended that as the rules and regulations of the complainant, as approved by final decree in the ancillary proceeding No. 79, allowed the cutting off of water from a consumer to coerce payment for prior services, and as the court has, in modifying the restraining