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section 7 (a), and including the power and authority conferred upon the President by the provisions of said section 7 (c), to require the conveyance, transfer, assignment, delivery or payment to himself, at such time and in such manner as he shall prescribe, of any money or other properties owing to or belonging to or held for, by or on account of, or on behalf of, or for the benefit of any enemy or ally of an enemy, not holding a license granted under the provisions of the trading with the enemy act, which, after investigation, said Alien Property Custodian shall determine is so owing, or so belongs, or is so held.”

Section 7 (c) also provides :

“The sole relief and remedy of any person having any claim to any money or other property heretofore or hereafter conveyed, transferred, assigned, delivered, or paid over to the Alien Property Custodian, or required so to be, or seized by him shall be that provided by the terms of this act, and in the event of sale or other disposition of such property by the Alien Property Custodian, shall be limited to and enforced against the net proceeds received therefrom and held by the Alien Property Custodian or by the Treasurer of the United States."

The relief referred to is that provided in section 9 (section 31151/2e).

[1] The argument of counsel for Simon that the act gives no power to the Alien Property Custodian to seize property which may ultimateiy turn out to be property of a citizen of the United States and that it gives him no right to make determinations as to such property is wholly inconsistent with its language and its purpose. The act is a war measure, intended in emergency to give the Alien Property Custodian immediate possession of all property which he determines to be property of an alien enemy without license from the President.

In the case of Garvan v. $20,000 Bonds, 265 Fed. 477, we considered the authority of the Alien Property Custodian with respect to seizures of property determined by him to be the property of alien enemies without license from the President, holding that his determination was conclusive and that while he might seize the property determined by him to belong to such an alien enemy with the strong hand he might also apply to the court under section 17 of the act (section 31151/2i) for an order compelling the delivery of such property to the marshal to be by the marshal delivered to him. Judge Learned Hand followed this opinion in Kahn v. Garvan (D. C.) 263 Fed. 909, holding that a bill of interpleader in such case could not be maintained, and the Supreme Court affirmed our opinion on January 24, 1921. 254 U. S. 554, 41 Sup. Ct. 214, 65 L. Ed. – Mr. Justice Holmes throughout this opinion recognized the right of the Alien Property Custodian to immediate possession of property which he has determined to belong to alien enemies having no license from the President, whether his determination be right or wrong:

"If we look no further than section 7 (c), it is plain that obedience to the statute requires an immediate transfer in any case within its terms without awaiting a resort to the courts. The occasion of the duty is a demand after a determination by the President and it is hard to give much meaning to the words 'which the President after investigation shall determine is so held,' unless the determination and demand call the duty into being. The condition after investigation' additionally points to the intent to make his act decisive upon the point, as it is in other cases mentioned in section 7 (a). But it is said that the subject of the section is enemy property only, and therefore (273 F.) that the determination cannot be final in its effect. Day v. Micou, 18 Wall. 156, 21 L. Ed. 860. And it is true that it is not final against the claimant's rights. Upon surrender the claimant may at once file a claim under section 9, if he satisfies the representative of the President, may obtain a return, and, if he does not obtain it in sixty days after filing the application, may bring a suit to establish his rights in the District Court, in which case the property is to be retained by the Custodian until final decree. These provisions explain the initial words of section 7 (c) as saving the ultimate rights of the claimant while the determination of the President still may be given effect to carry out immediate seizure for the security of the government until the final decision upon the right. The reservation implies that mistakes may be made and assumes that the transfer will take place whether right or wrong.

"The argument on the original words of the act in view of the manifest purpose, seems to us to be strong, but it appears to us to be much strengthened by the amendments of later date. By the act of November 4, 1918, c. 201, 40 Stat. 1020, section 7 (c) was amended among other things by adding after the requirements of transfer for the same may be seized by the Alien Property Custodian, and all property thus acquired shall be held, administered and disposed of as elsewhere provided in this act.' This shows clearly enough the peremptory character of this first step. It cannot be supposed that a resort to the courts is to be less immediately effective than a taking with the strong hand."

[21 The amount of the plaintiff's indebtedness was admitted and the plaintiff in complying with the demand of the Alien Property Custodian would be in no danger whatever because section 7 (e) provides :

(e) No person shall be held liable in any court for or in respect to any. thing done or omitted in pursuance of any order, rule, or regulation made by the President under the authority of this act.

"Any payment, conveyance, transfer, assignment, or delivery of money or property made to the Alien Property Custodian hereunder shall be a full acquittance and discharge for all purposes of the obligation of the person making the same to the extent of same.

[3] But the District Judge thought that the power of the Alien Property Custodian did not extend to seizing choses in action such as debts. In our opinion debts owing to an enemy were covered by the words of section 7 (c) of the Act as originally passed, viz. “any money or other property owing or belonging to

an enemy or ally of enemy not holding a license granted by the President hereunder, which the President after investigation shall determine is so owing or so belongs * * shall be

paid over to the Alien Property Custodian,” but all doubt is removed by the language of the section as amended November 4, 1918, supra, in force at the time the first demand was made by the Alien Property Custodian, which expressly covers choses in action.

[4] As the District Judge maintained the jurisdiction, the appeal to this court was proper, under United States v. Jahn, 155 U. S. 109, 15 Sup. Ct. 39, 39 L. Ed. 87.

We will not go into any inquiry as to whether Simon or the Alien Property Custodian is entitled to the indebtedness of the plaintiff. Simon's remedy would be upon payment of that indebtedness to the Alien Property Custodian, if it were not returned on notice and demand within 60 days, to bring a suit in equity against him under section 9 of the act, the moneys being held to await the result of suit.

As the plaintiff had no standing whatever to file a bill of inter

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pleader, and the District Court had no jurisdiction to entertain it, the decree is reversed, and the court below directed to enter a decree dismissing the bill.

HOUGH, Circuit Judge (concurring). In the result of the foregoing opinion I concur; that is, I agree that neither the lower court nor any other tribunal in or of the United States had jurisdiction to compel the Custodian to come into court and either litigate or forego his demand against the bank or Simon or both. Therefore the bill of interpleader should have been dismissed.

The statute creating the Custodian enables him to capture enemy property with a sergeant and file, or otherwise vi et armis. He may also file a libel of possession, or he may sue in other ways; but he cannot be sued except in respect of that which he has already obtained. He can use his own method of procedure; courts cannot coerce him in limine.

But with all expressions in the majority opinion, indicating or suggesting a belief that the Custodian should have prevailed, had he elected to sue in any form in any court administering justice under the forms of law, I disagree.

PANDOLFO v. BANK OF BENSON et al.

(Circuit Court of Appeals, Ninth Circuit. May 2, 1921.)

No. 3589.

1. Libel and slander 81–Complaint held to show publication was within

authority of unincorporated association,

A complaint which alleged that the defendants were members of an unincorporated association of bankers, and that they were engaged in printing a book and pamphlet of their proceedings, and that in the tenth volume of such book was printed a defamatory letter concerning plaintiff, which was read by the secretary at a meeting of the association, sutficiently shows that the publication was within the scope and purpose of the association, so as to state a good cause of action against the members

thereof for libel. 2. Associations w16_Members liable for libel by agent within scope of au

thority.

The members of an unincorporated association are liable in their collective capacity for tort, and are answerable for damages for libel pub-. lished by their agent with their authority, while the agent is acting within

the scope of his employment. 3. Associations 16-Libel by agent need be only within general scope of

employment.

To hold the members of an unincorporated association liable for a de famatory article published by their agent, it is not necessary to show authority, expressed or implied, to the agent to publish the libel; but there must be some evidence from which authority might be implied on the part of the agent to publish the article within the general scope of his employment. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexen

(273 F.) 4. Libel and slander 86 (2)—Pleading Om364 (6)-Innuendo unnecessary,

when words are libelous per se.

If the defamatory words alleged are actionable per se, no innuendo is necessary, and the allegation by way of innuendo may be stricken from

the complaint. 5. Libel and slander wo 86 (2)-Innuendo proper, where words have both innocent and defamatory meaning.

Where the words used hare two meanings, one of them harmless and the other defamatory, the innuendo may properly point out injurious meaning. 6. Libel and slander 6 (2)—"Crook” applied to person is always defama

tory.

Though the words “crook" and "crooked” have two meanings, one of which is harmless, they have no harmless meaning when they are applied to an individual or to human conduct, but where so applied they charge dishonesty, and are defamatory, within the common understanding of mankind.

In Error to the District Court of the United States for the District of Arizona ; David P. Dyer, Judge.

Action for libel by Samuel C. Pandolfo against the Bank of Benson and others. From a judgment for defendants after demurrer to the complaint was sustained, plaintiff brings error. Reversed and remanded, with instructions to overrule the demurrer.

The court below sustained a demurrer to a complaint which alleged in substance that the defendants, consisting of a large number of banks under the style of Arizona Bankers' Association, together with their secretary, were engaged in the business of printing and publishing a certain book and pamphlet called “Proceedings of the Arizona Bankers' Association," and that the secretary of the association acted with it in printing and publishing and distributing the said book; that said book was published yearly, and was largely circulated by the defendants and was widely read by bankers and business men generally; that the defendants, intending to injure the plaintiff in his good name, fame, and credit, etc., did in May, 1918, in volume 10 of the book or pamphlet known as “Proceedings of the Arizona Bankers' Association," publish, and cause and procure to be published, of and concerning plaintiff a certain false and defamatory and libelous article, as follows: "The Secretary: Mr. President, before you take up any other matters, I have a letter here that I want to read. This is a letter addressed to the Secretary of the Arizona Bankers' Association, and also to the Secretary of the New Mexico Association. It says:

You have operating in Arizona and New Mexico one Mr. S. C. Pandolfo, who recently moved from San Antonio. I am writing you, gentlemen, with reference to this man Pandolfo, as he is a doublebarreled crook. The Commissioner of Insurance of Texas revoked his license outright and refused him the privilege of writing insurance in Texas on account of him continuously violating the law. Our Banking Commissioner forbade state banks from buying paper from this fellow, or in any manner taking obligations in which he was interested. He has crooked more people and in more ways than most any fellow we have ever had in this part of the country in a long time. I believe that it is only just to the bankers in your state that you tip them off to this fellow. If you do not, he is certainly going to hang a lot of them before he is found out. He is one of the crookedest white men I bave ever seen.' It is such a letter that I did not care to put it in print and send it out as a warning, as I did not know but what I might be held up and libeled for something, so I thought I would read it here to you all." The complaint further alleged that the defendants well knew that the said statements so published of and concerning the plaintiff were false, and that the same were published with the malicious and express intent of defaming and injuring the plaintiff. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

273 F.-4

Jones, Hocker, Sullivan & Angert, of St. Louis, Mo., and Alexander, Christy & Baxter, of Phænix, Ariz., for plaintiff in error.

Thos. Armstrong, Jr., Ernest W. Lewis, and R. Wm. Kramer, all of Phænix, Ariz., for defendants in error.

Before GILBERT and HUNT, Circuit Judges, and WOLVERTON, District Judge.

GILBERT, Circuit Judge (after stating the facts as above). [1] The defendants rely upon the proposition that the limit of liability of members of an unincorporated association is that the members are responsible for tortious acts committed by the society, where it can fairly be assumed that they were within the scope of the purpose for which the organization was formed, citing 5 C. J. 1364, and they contend that no such allegations of fact appear in the complaint. It is argued that the title of the book published by the association shows that it merely sets out an account of the proceedings of the association, and that the publication of such an account is not a matter within the scope of the. purpose of the organization upon which all the members can fairly be said to be responsible. To this we cannot assent. We do not find that it appears from the complaint that the publication of the account of the annual proceedings of the association is not a matter within the scope of the purpose of the organization. The complaint distinctly alleges the contrary. It alleges that the association was engaged in publishing the book and distributing the same, that it published one such book every year, and that the book in question was the tenth of the series, and even if there were no allegation that the publication of the proceedings was within the scope of the purpose of the organization, it would be but reasonable to hold that the publication of such a volume, issued as it was annually, giving an account of proceedings of the association, was distinctly within the scope of the purpose of such an association. It appears from the complaint that the letter was read by the secretary to the association as part of the proceedings of the association, and the secretary's subsequent remarks indicated his purpose, unless otherwise directed by the association, to publish the letter in the report of the proceedings. The fact that the association approved his action in so doing is clearly deducible from the fact that the letter was embodied in the report, and that the defendant caused the report to be published and circulated. If it was true that the plaintiff had newly arrived and was “operating in the states of Arizona and New Mexico," and was such a man as in the letter he was said to be, the action of an association of bankers of one of those states in giving public warning against him was both appropriate and commendable.

[2] The members of an unincorporated association are liable in their collective capacity for tort (5 C. J. 1369; 25 R. C. L. 67), and they are answerable for damages for libel published by their agent with their authority while the agent is acting within the scope of his employment, just as a corporation is liable under like circumstances (United Mine Workers of America v. Coronado Coal Co., 258 Fed. 829, 837, 169 C. C. A. 549; Buckeye Cotton Oil Co. v. Sloan, 250 Fed. 712, 719, 163

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