*1 hearing Commis- since the last before the which it other facts sion was or of closed The Commission deem relevant. and to wish to evidence take additional new facts. modify plan light of course preclude such a We do not wish to desirable. Commission thinks judge to the district Moreover have left portions of the discretion to remand plan desirable. opinion this seems if in his respect to the motion with The Trustees’ Colony is denied. Old of Massachusetts The Commonwealth opinion so as modify our requests us to portion that the remand make clear Colony in- relating to the Old plan N(2) provisions of sections cludes grant- motion is plan. This N(3) of the regarded as an But this is ed. think the Commission intimation that we necessarily exercise its modify provisions. these stay pending our mandate 4. Motions to Supreme applications to Court writs been made the Com- certiorari have Massachusetts, Webster monwealth Boston, trustee, Bank Atlas National Group Bank Committee Savings Mutual and Institu- Terminal Bonds for Boston Group Com- Boston Terminal tional pany motions denied. Bonds. The are petition rehearing filed Group Bank Savings Committee
Mutual Company Bonds is for Boston Terminal
also denied. CO., Inc., DURNING, SEEKER
TRUTH of Customs. Collector
No. 180. Appeals, Second Circuit. 18,
Jan. *2 delivery prop- for with offer pay mand charges, er illegal defendant’s and and capricious violating refusal three free- press, speech, doms of the re- and of dissenting. Judge, Circuit ligion. plain- paragraphs final three its tiff re- first asked “a with determination spect enlighten- to these three freedoms as prevails liberal and as now Isles,” alleged British it was adequate legal without other remedy and irreparable injury would suffer for, prayed finally and sought peremptory alternative writ of mandamus defendant without seeking “to review act of the defend- complaint ant.” The concludes with a prayer order for an the defend- ant admit publications into Port of New York and deliver plaintiff them to the after assessment and City, York Friou, New Dyson George payment fees, proper “and that plaintiff-appellant. for plaintiff have such other further relief and Atty., Power, of as to U. S. and Arthur C. Asst. McGohey, U. City F. X. (John for having The defendant’s New York answer brief), September 22, City, 1943,1 been extended to York Atty., of New S. publications plaintiff returned defendant-appellee. for September and then moved for FRANK, CHASE, CLARK, and Before complaint, which the court Judges. granted costs, without October against the objecting affidavit plain- Judge. CLARK, Circuit tiff. thirty- some extensive In an alleged plaintiff appears While the now to paragraphs English chiefly sellers be orders placed twenty copies of “The the defendant for because of the publishers ille Ball, by gality first of the detention order and in Foote and Handbook” Bible “Papacy prevent 1888, twenty copies infringe recurrences of similar published in McCabe, rights pub- first by Today” ments asserts Politics in —thus copies of “The Free already run into further difficulties lished England shipments Thinker,” periodical published of such with later books as “The Age it had fifty years, Thomas Paine’s of Reason”— than more appealed yet de- the entire an assistant order and notified periodicals asks for reversal judgment had now that the books fendant York, advised, “being for- favor. seems well New arrived room to entitled judgment seizure the Customs warded below, plaintiff war, lie hardly at obtained duration en be detained costs, application for titled event you make dis which time ques- publications cretion exercised re release.” their known, to be well them is not to be fuse Cf. asserted disturbed. were then tion Brown, App.D.C., Shima country, public libraries found in obscenity, Procedure, Federal Rules of Civil immorality, or other rule 54 matter; (d), plaintiff alleged de- section 723c. stipulated parties until it had dor heard the first for an ex- ob- jections ; August 15, and the order then for answer —due entered of time clear- tension time, ly September ques- extended the whatever then the 3943 —to might sought parte Attorney tions which raised as to ex the ear- steps. Orange September 22, Corpora- Cf. until on the lier Theatre an extension Rayherstz Corporation, ground Amusement the collector was to re- tion about publications. appears, how- turn ever, enter or- court did not 612, 614; of California the defend- Oil Co. whether Union must decide Hence Bryan, D.C.S.D.Cal., F.Supp. summary dismissal ant 177-180, Bidwell, seemingly that he had De Lima showing mere on a repented ex- action, and with his *3 why took he to planation record as of seem it would In such an action of detention place. notice the first quite goods that the return of the clear the involving something that suggests defense, complete was not a but be thought to was the war prosecution of only mitigate That was damages. serve to was presumably involved, action and the the well rule of law settled the common 1305, prohibiting U.S.C.A. 19 § under taken 1934, Restatement, Torts, now embalmed in pamphlets importation of the 247, dealing with the of chat conversion § But character. or subversive an immoral indeed, ; stated, tels con as protest statute, allows no under which this mitiga ditions must concur even Customs States the United to be taken was damages: tion of that the conversion infor- transmit Court, must the collector faith, good the that condition physical attorney the dis- district the mation to goods unimpaired, the was the proceedings in trict, must institute who kept tender promptly good made was con- forfeiture and the court for district 560, Colby Reed, thereafter. v. 99 U.S. or matter seized. of the fiscation 566, seems, while And elapsed be- six months although some But plaintiff apparently as al visualized in its the detention time of tween the legations irreparable injury, periodicals, of release might properly equity invoke the un aid steps suggestion there is no Hand, appropriate conditions, L. der cf. perceive taken; is difficult and it Stuart, J., D.C.S.D.N.Y., 291 in Sims v. material can this possible relation what 707; Cir., F. Ryan, 5 F.2d Newfield v. 91 the For of the war. the conduct have to denied Ryan New certiorari v. therefore, we must appeal, purposes of this field, 729, 54, 302 58 82 U.S. S.Ct. L.Ed. illegal. the detention assume 563, awarded, yet damages there be relief, necessary complete even where clear, view of quite Now is though longer mandatoiy action was no only of federal man ancillary nature necessary. & Corporation Rice Adams Columbia except District of damus — Lathrop, 509, 49 73 L. man suggestion of —that 480; Howard, Ed. Hohorst v. C.C.E.D.N. remedy Young unsound. a damus as 97; Y., Chafee, 37 Equitable F. cf. Cases States, Cir., 6 141 F.2d v. United blood Torts, 1924, Against 252n.; Relief former Cir., 4 915; Hetfield, 9 F.2d Barber v. Equity 23, 28 Appen Rule 723 Bauer, 245; 120 U.S. Rosenbaum course, Of dix. have could But 30 7 S.Ct. stopped running costs-by further complete, full allegations made its has offer of under F.R.C.P. 68. asked, to an fact in addition has material, view, therefore, of the show In for the return defendant, apparent further as to the ing default “such other judg More court to may error for the defendant; over, prayer, summarily but ment reference required relief to which the defendant was not since is entitled it, theory though not entitle even its own show whether defense did facts may merits, F.R.C. be been unsound. must remanded of relief have the action proceed the Use of 54(c); United States for Court for further P. the District Cir., Co., opinion. 2 Co. v. Zara Cont. this this ings Susi Cont. consistent with In 606, and cases cited. There is F.2d 146 be noted we have connection directly against remedy recognized kind deduction from no —as collector, making property 28 taken U.S.C.A. § appro himself although irrepleviable, the collector laws under the revenue reimbursed, subject be 28 decrees of federal court priate instances 842; remedy jurisdiction proceed appears having the usual U.S.C.A. § —a government personally ing collector hold the officials to be one improper perform pro to the forfeiture proceed promptly default damages. ceedings action for return articles. re in an In of his duties ance Cir., Behrens, Cir., Durning, No. 32 F.2d re F.2d Dioguardi Cir., Newton, St., 2 Cir., Sixty-Seventh Conklin East properly Having dismissed suggested the denied been 135 F.2d par prevailing defendant who was which summary procedure, that such ty. allow they way, Otherwise the merits not test F. 54(d), ed as matter course. Rule re appropriate, where exclusive R.C.P. To extent the St, supra, but Sixty-Seventh East ruling necessary discretionary benefit seems intimation which as been made. apply to costs could corollary will restriction be, prevailed below Even had or has appears to detention where the Behrens, allowed had rea costs would have been become, re clearly illegal, cf. In *4 shown. seizure been sonable cause page 561 at supra, 39 F.2d 28 U.S.C.A. 818. supra, 135 pages 401. Whether 398 at I judgment. affirm carry procedure ever official, not now need costs determine; is shown for when the detention delay, reason to unexplained otherwise, release, for the denial would seem reason damages. Cf. at least nominal De costs and Carter, Cir., 102 F. Field Bary v. 4,771. C.C.N.Y, Schell, Fed.Cas. No. remanded. Reversed and
UNITED STATES v. HORNS et al. Judge (dissenting). recover Ordinarily damages not be Appeals, Circuit Court Third Circuit. Coin pleaded. Pacific they are Argued Dec. 1944. Co, Controlling Lock Lock Co. v. Coin Decided Jan. here shows record pleaded only damages were that no As Amended Feb. court claimed that none below. Nor now claim dam- apparently ages kind. is wholly, primarily, if not an award of costs punitive their supposed effect because shown sentence as is “The small bill costs to which its brief. of law as a matter deterred further deliberate
withholding of such books and would any official stimulated indifference such repetition prevent any within matters memory officials conscious a watchful court award costs cases.” proof allegations, absence damages, the demand lor district court correctly ruled that cause appeared was moot when it plaintiff.
had been released with- out error. A “will determine controversy actual matters essential the decision of the particular case before Steamship it.” United States v. Alaska Co,