Page:United States Reports, Volume 257.djvu/91

diction to award such restitution. See Minneapolis, St. Paul & Sault Ste. Marie Ry. Co. v. Merrick Co., 254 U. S. 376.

In truth the new suit, in so far as it may purport to bear at all upon the proceedings against which mandamus was sought, is not within the leave reserved in the "without prejudice" provision, indeed is in the nature of a bill of review, although leave to file such a bill was asked of us pending appeal in the former suit and refused for reasons stated in 250 U. S. 261-262. In any aspect, neither the pendency of the new suit, nor the granting of a restraining order therein, constitutes the least reason for granting the rehearing asked for.

Other points are suggested, but they are without substance. The fact, if it be a fact as alleged, that the bond given in the former suit is not sufficient in amount to cover the aggregate overcharges collected by petitioner pendente lite in excess of the ordinance rate, manifestly raises no question about the jurisdiction of the District Court to award restitution.

Rehearing denied.

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YAZOO & MISSISSIPPI VALLEY RAILROAD COMPANY et al. v. CITY OF CLARKSDALE.

ERROR AND CERTIORARI TO THE SUPREME COURT OF THE STATE OF MISSISSIPPI.

1. A judgment of a state court denying the validity of a title claimed under an execution sale based upon a federal court judgment, because of supposed irregularities in the marshal's attempted exercise of his authority to sell, the authority itself not having been drawn in question, is reviewable by certiorari and not by writ of error, under Jud. Code, § 237, as amended. P. 15.

2. The application of state laws to a marshal's sale of property under a common-law execution issued on praecipe from a federal court,