/ff- QJnrnpU ICam ^rlynnl ICibrary Cornell University Library KF 170.L89 1903 V.I Forms of federal practice / 3 1924 022 834 752 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022834752 FORMS OF FEDERAL PRACTICE COMPILED, ARRANGED AND ANNOTATED BY FRANK O. LOVELAND CLERK UNITED STATES CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT, AUTHOR OF LOVELAND ON BANKRUPTCY TWO VOLUMES VOL. L CINCINNATI, O. THE W. H. ANDERSON COMPANY 1903 Copyrighted, 1894, 1908, BY The W. H. Anderson Company. to the memory of My Father, DatJtD 0nD«iD JLofaclana, THIS BOOK IS DEDICATED AS A TOKEN OF FILIAL LOVE AND AFFECTION. PREFACE. THE object of this work is to provide the profession with practical forms of procedure in the Federal Courts, with citations in the notes to cases regulating the practice in the use of them. In preparing this edition, I have carefully revised the forms contained in the first edition and have added very many new precedents. These forms were taken from the records of cases in different Federal Courts. In selecting a form, as a prec- edent, I have had in mind the reputation of the counsel pre- paring it, as a careful pleader, as well as the fact that it had been approved by the court in the case in which it was filed. I have tried to make this coltection of precedents as com- plete as possible. It must be remembered that forms are intended merely as models to guide attorneys in preparing particular cases and must be adapted to the varying conditions of cases as they arise. I wish to make grateful acknowledgment for valuable assist- ance from many of the judges and clerks of United States Courts in different parts of this country and from counselors in special departments of practice, who have criticised forms selected and suggested other precedents and cases which they considered of value in a work of this kind. Frank O. Loveland. Cincinnati, May, igoj. POEMS OF EEDEEAL PEACTICE. SUITS AT LAW/ DECLARATIONS AND PETITIONS. No. 1. Caption. The District [or, Circuit] Court of the United States for the District of . A. B., Plaintiff, "| At Law. vs. > No. ■ C. D., Defendant, j [Name of Acizon.] \Name of Pleading?^ No. 2. Commencement of Declaration (i) by an Individual against an Individual. {Caption!^ A. B., of , state of , who is a citizen of the said state of , and of the United States, plaintiff in this suit, by R. X., his attorney, complains of C. D., of , who is a *In civil suits at law in the district and circuit courts of the United States the pleadings conform as near as may be to the pleadings in like 8 SUITS AT LAW. citizen of said state of , and an inhabitant (2) of the district of aforesaid, and says : (i) "Petition" or "Complaint" according to the practice in the state where the action is commenced. (2) See Act of March 3, 1887, as amended in 1888, 25 St. at L., p. 433, clause 4; Desty's Fed. Proc, Sec. 87; Smith i/4.Xyon, 133 U. S., 315. No. 3. Commencement of Declaration (i) by a Corporation against a Corporation. \^Capiion.\ The A. B. Co., a corporation organized and existing under the laws of the state of , and a citizen of said state, plain- tiff in this suit; complains of The C. D. Co., a corporation organized and existing under the laws of the state of , and a citizen of said state, and an inhabitant (i) of the district of aforesaid, and says : (i) See notes to No. 2. causes in the courts of record in the states within which such federal court is held, except in those particulars which are regulated by federal statutes. • Section 914 of the Revised Statutes of the United States provides that " the practice, pleadings, and forms and modes of proceeding in civil causes, other than equity and admiralty causes, in the circuit and dis- trict courts shall conform, as near as may be, to the practice, pleadings, and forms and modes of proceeding existing at the time in like causes in the courts of record of the state within which such circuit or district courts are held, any rule of court to the contrary notwithstanding." This provision applies generally to civil actions at law, Robertson vs. Perkins, 129 U. S. 233 ; U. S. vs. Parker, 120 U. S. 94 ; R. R. Co. vs. Horst, 93 U. S. 291, but does not affect the personal conduct or adminis- tration of the judge in the discharge of his separate functions, as with respect to written instructions to a jury, or what papers may be sent to the jury room, or his discretion in granting a new trial; Nudd vs. Bur- rows, 91 U. S. 441-2; R. R. Co. vs. Horst, 93 U. S. 300, or the practice in the supreme court or the circuit courts of appeals, Andes vs. Slauson, 130 U. S. 438 ; In re Chateaugay Iron Co., 128 U. S. 553 ; Ky. Life, etc., Co. vs. Hamilton, 63 Fed. Rep. 93, 11 C. C. A. 47; Lincoln vs. Power, 151 U. S. 442, or where there is a regulation by Congress, Ex parte Fisk, 113 U. S. 713; Coffey vs. U. S., 117 U. S. 235; Lamaster vs. Keeler, 123 U. S. 376. In preparing pleadings the practitioner must consult the forms required by the state rules of pleading. The following forms are precedents for use in states where codes have been adopted as well as where common law still exists. DECLARATIONS, ETC. 9 No. 4. Commencement of Declaration (i) by a Copartnership against a Copartnership, A. B. and F. L., citizens of the state of , copartners, doing business under the firm name and style of A. B. & Co., at , in the state of -, plaintiffs in this suit, com- plain of C. D., B. R., and A. S., copartners, doing business under the firm name and style of C. D. & Co., at , in the state of , all of whom are citizens of the said State of , and inhabitants (i) of the district of afore- said, and say : (i) See notes to No. 2. No. 5. Commencement of Declaration (i) by an Alien against a Citizen of the United States. \_Caption.'\ A. B., of , who is an alien, a subject of the emperor \or, king, or queen, or citizen of the republic] of , and plaintiff in this suit, complains of C. D., of , who is a citizen of the state of , and an inhabitant (i) of the district of , and says: (i) See notes to No. 2. As to the necessary allegation of alienage, see Stuart vs. Hasten, 156 U. S. 46; Rondot vs. Rogers, 79 Fed. Rep., 676; 25 C. C. A., 145. No. 6. Commencement of Declaration (i) by the United States. [Caption^ The United States of America, plaintiffs in this suit, by J. H., their attorney in and for the district of , complain of C. D., of , a citizen of the state of , and an inhabitant (i) of the district of aforesaid, and say: (i) See notes to No. 2. IQ SUITS AT LAW. No. 7. Declaration against Railway Company for Damages for Per- sonal Injuries from Collision of Trains. [Caption.] Plaintiff, a citizen of the state of , sues the defendant, The C. & D. Railroad Company, a corporation organized under the laws of the state of , and a citizen of said state, and an inhabitant of the , district of , for dollars damages, for this: That on the day of plaintiff was on a train, upon defendant's railroad, going from to . Both on the line of said railroad, and while so upon said train, and going from said station to station as aforesaid, the same at or near the city of , collided with another train upon said road, moving from the opposite direction ; and that plaintiff in said collision and by reason thereof sustained great and permanent bodily injuries, and was put to much and long physical and mental suffering, and great expense. Plaintiff avers that the train upon which he was riding, and the train in collision therewith, as aforesaid, were both then and there being operated by the defendant, and were under its control and management; that plaintiff was rightfully upon said train at the time of said collision, and that said collision was caused by, and resulted from the unlawful, wrongful and negligent acts of defendant, and plaintiff was thereby injured as above stated, without fault upon his part, therefore he sues and asks a trial by jury. R. X., {VenficationJ] Attorney for Plaintiff. No. 8. Petition against R. R. Co. for Personal Injuries to an Em- ployee (i). [Caption.] Now comes A. B., a citizen of the state of , the plaintiff herein, and for his cause of action against the said defendant. DECLARATIONS, ETC. II the C. D. Ry. Co., says, that the defendant is a railroad cor- poration organized under the laws of the state of , and controlling and operating a railroad within the state of and within the state of -. At the time of receiving the injuries hereinafter complained of, the plaintifif was, and for some time prior thereto, had been, in the employ of the defendant as a brakeman upon its freight trains. On or about the day of , the plaintiff, under the instructions and orders of the defendant through its rep- resentatives, was engaged in the performance of his duties as 5uch brakeman upon one of the defendant's freight trains running.over the portion of the defendant's road lying between and , in the state of . Upon the arrival of the said train at Sanford, a station upon the defendant's said line of road, it became and was the plaintiff's duty, as such lirakeman, under the orders of the conductor of the said freight train, to assist the other persons engaged in operating -said train in removing from defendant's switch, or side-track, at said station, certain cars loaded with wood, and adding them to the said freight train then standing upon the defend- ant's main track. Plaintiff says that the locomotive attached to said train having backed down upon said side-track, and coup- lings having been made for the purpose of drawing out the said cars of wood, which were separated from said locomotive iDy a box car, so-called, the said locomotive and cars then moved forward toward the defendant's main track, and as the same were approaching the said main track, the plaintiff, in the discharge of his said duties, was required to and did descend from the top of the said box car, on which he had taken his position for the purpose of giving such signals as might be necessary in moving said cars; that as he was de- scending on the rear end of the said box car on the rungs, or ■steps, provided for such purpose, and as the said cars were -passing a pile of wood, which had been placed close to the -said side-track, a portion of the plaintiff's body having ex- 12 SUITS AT LAW. tended slightly beyond the outer edge of the said box car, the plaintiff was suddenly struck by a certain piece or pieces of the wood so piled along said track, and thereby thrown violently to the ground, dragged and thrown against the said track, and under the said cars of wood, thereby sustaining severe in- juries as hereinafter more specifically set forth. • And plaintiff further says that said wood had been care- lessly and negligently piled upon the said premises of the defendant so closely to the defendant's said side-traclc that there was constant danger to brakemen, engaged in switching^ cars upon such track, of being injured thereby; that it had been placed in such position by the permission of the defendant several months prior to the time of the plaintiff's receiving his said injuries ; that the defendant had notice and knowledge at- the time such wood was piled upon its said premises, and shortly thereafter, that the same was carelessly and negli- gently piled so close to the defendant's said side-track that the defendant's employes, discharging duties similar to those de- volving upon the plaintiff, were in constant danger of being- thrown from the cars moving along the said side-track; that at all the times above mentioned the premises occupied by the "Said pile of wood, as well as the said side-track, cars and train, were under the entire control and supervision of the said de- fendant; that, notwithstanding such facts, such premises were by the defendant permitted to be and continue in such danger- ous condition; that at and prior to the time of receiving the- injuries herein mentioned, plaintiff had no knowledge what- soever of the dangerous and unsafe condition of the said premises, or of the fact that the said wood, or any part thereof, had been placed so near the said side-track that the plaintiff in the discharge of any of his duties as such brakeman, would be in danger of coming in contact with any portion of it; that the said injuries were received by the defendant at a time when, by reason of darkness and a prevailing storm, he was unable to see the danger to which he was exposed; that the. DECLARATIONS, ETC. 1 3 same were received without any negligence on his part, and were caused solely through the carelessness and negligence of the defendant in the premises. Plaintiff further says, that when he was thrown as afore- said under the said cars, and against said track, the wheels of the said cars of wood passed over his right arm, near the shoulder, so fracturing and injuring the. same that it became necessary to amputate said arm close to the shoulder joint; that fit the same time plaintiff's head and face were cut and bruised in several places and his right leg severely cut, bruised and lacerated in many places, his back strained and wrenched, suffering thereafter from all such injuries great bodily and mental pain; that, as a consequence of such injuries, plaintiff was confined and treated at a hospital for a period of five weeks, incurring thereby large expense for necessary attend- ance and treatment; that, on account of his said injuries, he has been incapacitated from work; that such injuries are per- manent in their nature, and that by reason of the premises the plaintiff has sustained damages in the sum of $20,000.00. Wherefore, plaintiff prays for judgment against the de- fendant in the sum of twenty thousand dollars. R. X., Attorney for Plaintiff. {^Verificaiion.} (i) Taken from Flint & Pere Marquette R. Co. vs. McPherson, 105 Fed. Rep. 210. No. 9. Petition for Damages for Personal Injury (i). [Caption.] Plaintiff is a citizen and resident of the state of . De- fendant is, and at all times hereafter stated, was, a corporation created by and organized and existing under the laws of the state of , and a citizen and resident of said state, and an inhabitant of the district of . 14 SUITS AT LAW. On the day of , the city of , in the state of — , a municipal corporation of said state, did, by and through its city council, by ordinance duly enacted, grant to The M. Railroad Company and the I. Railroad Company, both corporations created by and organized under the laws of said state, and owning and operating railroads in said city, per- mission and right to lay down, use and operate with cars and locomotive engines, railway tracks upon and in Water street. Front street and the Public Landing of said city from Smith street in the western part of said city to the depot of the said The M. Railroad Company in the eastern part of said city. Said Water street. Front street and said Public Landing were then and there, have ever since been, and still are, public high- ways, and public commons of said city of and state of . . The said corporations to whom said grant was made, did under and in pursuance thereof lay down railroad tracks upon and in said Water street. Front street and said Public Landing extending from Smith street to the depot of said The M. Railroad Company, and did use and operate the same with locomotive engines and cars; and thereafter, and long before the committing of the wrong hereinafter set out, said The M. Railroad Company did lease, let and demise its said rail- way and all appurtenances, including said tracks laid as afore- said upon and in said public highways and public commons, to the defendant The P. Railway Company, for a term yet unexpired; and thereafter, and at all times hereinafter stated, and until the present time, the defendant has possessed, used and operated, and does now possess, use and operate, with locomotive engines and cars, said railway including said tracks laid as aforesaid upon and in said public highways, and public commons, under and in virtue of the ordinance afore- said and not otherwise. Said ordinance, under and in virtue of which said tracks were laid and were and are used and operated as aforesaid upon and in said public highways and public commons, provided among other things, as follows : DECLARATIONS, ETC. IS " The hours which said track may be used for the transmis- sion of freight and passengers shall be as follows: From the 1st of April, to the ist of October, from 8 o'clock p. m. to 6 o'clock a. m., and from the ist of October to the ist of April from 7 o'clock p. m. to 6 o'clock a. m., and no cars shall be drawn on the track at any other hours. The companies to have the privilege of using the steam or horse power, as they may in their judgment think best; subject, however, to the approval of the city council. But in no case shall cars be drawn through the city at a greater speed than six miles per hour." Said ordinance is, and ever since the date of its passage aforesaid has been, unrepealed, unmodified and in full force and effect. On the day of , at the hour of six o'clock and fifty minutes a. m., H. H. was upon said public highways and public commons, viz. : said public landing and said Water street, between Smith street and the depot of said The M. Railroad Company, and between Main and Sycamore streets of said city — with a heavily loaded wagon drawn by two horses. Said H. H. was then and there the driver of said horses and was in charge, possession and control of them and said wagon, he being then thereunto employed and hired, for reward, as their servant, by the owners thereof. And then and there, while said H. H. was so upon said public highways and public commons with said horses and wagon, the defend- ant, at the hour of six o'clock and fifty minutes a. m., of said day, the day of , did wrongfully, unlawfully and with gross and wanton negligence drive, run and operate a locomotive engine and train of freight cars upon, over and in said public highways and public commons, viz. : said Public Landing and Water street, between said Smith street and said depot of said The M. Railroad Company, and upon and over the said track there aforesaid laid and maintained under and in virtue of said ordinance. Said locomotive engine and cars i6 SUITS AT LAW. were so driven, run and operated by defendant with much noise and at a greater rate of speed than six miles per hour. And then and there, by said wrongful, unlawful and negligent driving, running and operating of said locomotive engine and cars, said horses drawing said wagon were much frightened, and were caused to become unmanageable, and were caused to run away with said wagon, and were caused to knock down and throw violently to the ground said H. H., and were caused to run and draw said heavily loaded wagon to which they were attached, upon and over the body of said H. H., whereby said H. H. was so injured in his person that he soon thereafter died thereof. Said H. H. left one Elizabeth H., his widow, surviving him, and also John H. aged 27 years, Richard H. aged 24 years, William H. aged 19 years, Louis H. aged 16 years, Lillie A. H. aged 10 years and Ella H. aged 7 years, his only children and next of kin, which widow and four last-named children were dependent on him for support, and said four last-named children were dependent on him for education also, and all of whom have been otherwise injured by the death of said H. H. to the amount of ten thousand ($10,000.00) dollars. Thereafter, on the day of , plaintiff was in and by the county court of county, in the state of , the county and state wherein said H. H. was domiciled, and of which he was a citizen and resident at the time of his death — duly appointed, and he did on that day duly qualify, as admin- istrator of the estate of said decedent. Under and by the laws of the state of , said county court had jurisdiction, power and authority to grant administration upon the estate of de- ceased persons. Wherefore plaintiff as such administrator, prays judgment against defendant for ten thousand ($10,000.00) dollars and costs. R. X., Attorney for Plaintiff. (i) Taken from P. C. C. & St. L. R. Co. vs. Hood, 94 Fed. Rep., 618, 36 C. C. A. 423. DECLARATIONS, ETC. 1/ No. 10. Declaration by a Minor by His next Friend for Damages for Personal Injury. [Caption.] First Count: The plaintiff, who is a minor, a citizen of the , state , sues by his next friend, S. B., who is a widow, and unmarried, and a citizen of the , state of , sues the defendant for twenty-five thousand dollars damages for this : Plaintiff avers that he is a minor about 12 years of age; that his father is dead, and that he sues by his mother, S. B., who is a widow and unmarried. Plaintiff avers that the defendant is a corporation duly incorporated under the laws of the , state of , and owns a line of railroad in and through the states of , , , and , and that it has main railroad track and switch tracks along and upon which the said defendant corporation runs and operates passenger and freight cars, propelled by steam locomotive engines. Plaintiff avers that upon the day of , that he was rightfully, legally and lawfully upon a certain wagon which was being driven on and along a public dirt road, to wit, the state line road, which runs east and west along the state line between and , and plaintiff avers that the state line dirt road crosses the main track and line of road belonging to the said defendant railroad company and certain switch tracks of and belonging to said railroad com- pany at or near Fulton. And the plaintiff avers that while he was so legally, lawfully and rightfully on said wagon which was being driven rightfully, legally and cautiously on and along said state line dirt road and that when the said wagon being so driven approached and got near to where said dirt road crossed said main track and switch tracks of said defend- ant railroad company, the said road was so unobstructed by any cars or engines of and along said defendant railroad com- pany that it appeared prudent and safe for the said wagon to be driven on and along said dirt road and across said main 1 8 SUITS AT LAW. switch track and dirt road or highway. And plaintiff avers that while said team drawing and pulling said wagon was in the manner aforesaid being driven rightfully across one of the switch tracks of and belonging to said defendant railroad com- pany at or near South Fulton, that a certain car or certain cars which were then on said switch tracks was by locomotive engine managed and operated and was then being run or con- trolled by certain agents, employes and servants of the de- fendant railroad company, carelessly, negligently, recklessly and unlawfully pushed or backed violently on and against the said wagon upon which plaintiff was then and there riding and the plaintiff was then and there by reason of said wrong- ful, unlawful, careless, reckless act or acts, upon the part of said agents, servants and employes of the said defendant rail- road company, knocked or thrown violently from the said wagon, and on or near the rails upon which said cars or car or engine were moving, and the plaintiff was then and there and in the state of Tennessee, negligently and carelessly and recklessly run on, against and over by certain wheel or wheels of one or more of the said cars and plaintiff was then and there greatly damaged, to wit, both of plaintiff's legs were then and there by the said cars or wheels thereof bruised, crushed, mangled and broken and if became and was necessary to have both of said legs cut off and amputated, and both of plaintiff's legs were necessarily amputated to save the life of plaintiff. Plaintiff avers that he suffered great mental anguish and physi- cal pain and that he, plaintiff, lost his said legs and was ren- dered a cripple for life, and unable to earn wages and make a living. Plaintiff avers that at the place where said state line dirt road crosses the said main railroad track and switch tracks of the defendant railroad company is a public place and it is necessary to cross the same by citizens and travelers who wish to travel on and along said state line dirt road and high- way at and along said point. Plaintiff avers that when said wagon being driven across the said main railroad track, that DECLARATIONS, ETC. 1 9 while and at the time it was crossing one of the switch tracks of and belonging to said defendant company that a certain car or certain cars which were on said switch track, was or were by the agents and employes of the defendant railroad com- pany, managing and operating a certain locomotive engine being pushed or backed negligently, carelessly and recklessly on and against the wagon on which the plaintiff was riding and the plaintiff was by said wrongful, negligent and careless acts, thrown violently from said wagon onto or near the track or rail of said swiLch track, upon which said car or cars and locomotive engines were moving and was wrongfully and negligently, carelessly and recklessly run over and against by the wheel or wheels of one of the said cars, when and whereby both of plaintiff's legs were broken, crushed and mangled, and it became and was necessary to have both the plaintiff's legs amputated or cut off and both of said legs were cut off for the purpose of saving the life of the plaintiff, greatly to plaintiff's damage, and plaintiff avers that he suffered great mental an- guish, anxiety and suffered great physical pain, and suffering and anguish to plaintiff's damage in all twenty-five thousand dollars, wherefore he sues and demands a jury to try the is- sues to be joined and assess his damage. R. X., Attorney for Plaintiff. No. 11. Petition by an Administrator for Damages for Death at a R. R. Crossing. [Caption.] Now comes the plaintiff S. B., a citizen of the , state of -T^ — , and avers that he is the duly appointed, qualified and acting administrator of the estate of E. F., deceased ; and was so duly appointed by the probate court of county, in the state of , by letters of administration on said estate duly issued to him thereby; and the defendant, The C. & D. Rail- road Company, is a corporation duly organized under the laws 20 SUITS AT LAW. of the state of and is engaged in conducting and operat- ing a public railroad in township, in the county of , state of , and was so engaged on ; that in said town- ship there is a certain railroad crossing, known as McCul- lough's Crossing, at which place there is a flag station on the line of the defendant's railroad, kept and maintained by it in ■connection with The Southern Railway Company, the track ■of which last named company, at that point, and for some distance north and south therefrom, is parallel with and im- mediately adjoining the track of defendant company ; that on the said day of , at about 6 o'clock a. m., as said E. F. was about to pass over the track of said defendant at said crossing, exercising due care on his part, he was struck by a locomotive of the defendant, running southerly upon the track of defendant, and so injured that he died soon there- after. Plaintiff says that said locomotive was being run and oper- ated at an extremely high rate of speed, to wit, about fifty miles per hour, and that no bell was rung, nor whistle sounded as said locomotive approached said crossing; that there was a sharp down grade at that point and for some distance north- wardly therefrom, and said locomotive was quietly running, by its own momentum, and that of the cars attached thereto, constituting a passenger train ; that the same was about thirty minutes behind its schedule time, and that no warning or sig- nal of its approach was given as it approached said crossing and passed over the same. Plaintiff says further that said decedent approached said crossing and was about to cross over the track of the defend- ant company, there was a heavily loaded freight train with a locomotive at each end thereof, going to the north upon the track of the Lake Shore Railway, immediately alongside of and parallel with the track of the defendant, which was known to the defendant's agents in charge of said train, and the noise occasioned thereby was such that decedent was pre- DECLARATIONS, ETC. 21 vented from hearing and was unable to hear the approach of the train running southwardly upon the track of defendant, already mentioned, and that at said crossing and northwardly therefrom there was a dense fog which obstructed decedent's view of the approaching train upon defendant's track, and prevented him from seeing the approach of said train thereon. Plaintifif says that said E. F. was rightfully upon said crossing, which had been used as such for many years, all of which was known to said defendant, and exercised due care in entering upon and attempting to pass over the same ; that the defendant was negligent in failing to give any signal or warn- ing of the approach of said locomotive and train, and in fail- ing and neglecting to keep any lookout for pedestrians upon and at said crossing, and in failing and neglecting to stop said train or to slacken its speed when it knew that said cross- ing was in constant use by pedestrians, the same having been provided and maintained by it for that purpose, and when it knew that the view of the approaching train which collided with decedent was obstructed by the fog so that the same could not be seen by decedent, in passing over said crossing, and knew that the train upon the track of the Southern Rail- road was passing said crossing as it approached the same. Plaintiff says that said E. F., at the time of his death, was of the age of thirty-one years, was sober and industrious, and was capable of earning, and was earning two dollars per day; that he left surviving him Rachel F., his widow, and May F. and Viola F., his only children and heirs at law, said children being minors, for whose benefit this action is brought. Plaintiff says that by reason of the negligence of the de- fendant, as herein alleged, said widow and children have been damaged in the sum of dollars ($ ), for which amount judgment is asked. R. X., Attorney for Plaintiff. 22 SUITS AT LAW. No. 12. Petition against Receivers for Damages for Ejectment from Railway Train. [Caption.] The plaintiff, A. B., says that he is a resident of county, state of , and that the C. & D. Railroad Company is a cor- poration incorporated under the laws of the state of . The plaintiff says that said corporation has constructed a rail- road across the state of , and that its said road runs through the village of and the city of in said state. This plaintiff says that K. C and O. G. are the duly and legally appointed, qualified and acting receivers of said rail- road company ; that the said receivers, defendants, were at the time herein complained of, and are now, operating said rail- road, and said road so operated by them, as receivers, was on the day of , a common carrier for hire of passengers and their baggage over its said line of railway. That prior to the day of , this plaintiff had purchased a certain book of mileage tickets, being Book No. 3370, issued to him by the E. & F. Railway Company, at its office in the city of , state of . Plaintiff avers that he was then and there the lawful owner and possessor of said book of mileage tickets, and that said mileage tickets in said book entitled him to passage over said road operated by said defendants. Plaintiff says that on the above named day he boarded a train of said defendant road at Station, , bound for , a station on said' road in said state, and having com- plied with all the conditions attached to his contract of passage 'on said mileage ticket book, he presented said mileage ticket in said book to he defendants' agent and conductor of said train for payment of his passage to his said place of destina- tion. Plaintiff avers that said defendants' agent and conductor refused to accept said mileage ticket for passage on said train. DECLARATIONS, ETC. 23 Plaintiff avers that in the presence of the passengers of said train said defendants' agent and conductor, while acting in the discharge of his duties as said agent and conductor, ac- cused this plaintiff of riding on a bogus mileage book, and as- saulted this plaintiff, and threatened to put him off the train unless he paid the fare to the place of destination, which this plaintiff then and there refused, whereupon said defendants' agent and conductor of said train ejected this plaintiff from the train in the presence of divers persons, to his great injury, and to his damage in the sum of dollars ($- ). Wherefore, plaintiff asks a judgment against the defend- ants for the sum of dollars ($ ). R. X., [Verification.] Attorney for Plaintiff. No. 13. Petition to Recover on Township Bonds. [Caption.] The plaintiff. The Brattleboro Savings Bank, is a corpora- tion organized under the laws of the State of Vermont, and is a citizen of the said State of Vermont. The defendant is the board of township trustees of Hardy Township, a civil township in Holmes County, Ohio, organ- ized and existing under and by virtue of the laws of Ohio, and within the Northern District of Ohio, Eastern Division. 1st Cause of Action. Paragraph i. Heretofore, to wit, on the fourth day of February, A. D. 1893, the defendant duly executed, sold and delivered twenty (20) certain negotiable coupon refunding bonds of said Hardy Township, of the denomination of one thousand dollars ($1,000.00) each, numbered consecutively from No. i to No. 20, both inclusive, bearing date of Feby. 4th, 1893, and to become due and payable as follows: Bond No. I, for the sum of one thousand dollars, on July I St, 1898. 24 ■ SUITS AT LAW. Bond No. 2, for the sum of one thousand dollars, on July 1st, 1899. [Set out other bonds in like manner.'] Each of said bonds was made to bear interest at the rate of six (6) per cent per annum, payable semi-annually on the first day of January and the first day of July in each year, and the said several payments of interest to accrue upon said bonds to the maturity thereof, respectively, were evidenced by interest coupons attached to said bonds, respectively, both principal and interest, to be payable by said defendant, as the same should become due, at the township treasurer's office of said Hardy Township, at Millersburg, Ohio. Said bonds were so issued under and by authority of an act of the General Assembly of the State of Ohio, entitled, " An Act to authorize the trustees of Hardy Township, in Holmes County, Ohio, to issue and sell the bonds of said township, for the purpose of paying ofif and satisfying the present existing, outstanding indebtedness of said township," which act was passed on February ist, 1893. The following is an exact copy of each of said bonds, ex- cept as to the number and the time of maturity thereof, to wit : [Here set out bond in haec verba.] Paragraph 2. Plaintiff is the owner and holder of the bond nutnbered one ( i ) of said series of bonds, which became due and was payable on the first day of July, 1898, payment of which defendant has refused and still refuses to make. The following is a true copy of said bond, to-wit: [Set out bond.'] There are no credits or endorsements on said bond, and there is due the plaintiff from said defendant thereon the sum of one thousand dollars ($1,000.00), with interest on said sum from' July ist, 1898. 2d Cause of Action. Plaintiff makes the allegations of paragraph i of its first cause of action herein a part of this, its 2d cause of action, as though the same were here fully repeated and set forth. DECLARATIONS, ETC. 2^ Plaintiff is the Owner and holder of the interest coupon rep- resenting the 9th installment of interest on bond Number One (i) of said series of bonds, which became due and payable on the first day of July, 1897, payment of which defendant has refused and still refuses to make. The following is a true copy of said interest coupon, to-wit : " No. 9. July I, 1897. The Township of Hardy, in Holmes County, State of Ohio, will pay the bearer thirty dollars, at the Township Treasurer's •office, Millersburg, Ohio, being six months' interest due on its refunding bond No. i. G. U. Duer, Township Clerk." There are no credits or endorsements on said coupon, and there is due the plaintiff thereon from said defendant the sum of thirty dollars ($30.00), with interest on said sum irom July i, 1897. 3d Cause of Action. Plaintiff makes the allegations of paragraph i of its first cause of action herein a part of this, its 3d cause of action, as though the same were here fully repeated and set forth. Plaintiff is the owner and holder of the interest coupon representing the loth installment of interest on bond num- bered I of said series of bonds, which became due and payable on the first day of January, 1898, payment of which defendant has refused and still refuses to make. The following is a true copy of said interest coupon, to-wit : "No. 10. January i, 1898. The Township of Hardy in Holmes County, State of Ohio, will pay the bearer thirty dollars, at the Township Treasurer's ■office, Millersburg, Ohio, being six months' interest due on its refunding bond No. i. G. U. Duer, Township Clerk." There are no credits or endorsements on said coupon, and there is due the plaintiff thereon from said defendant the sum ■of thirty dollars, with interest on said sum from the first day 26 SUITS AT LAW. of January, 1898. [In like manner make assessments for other coupons and conclude as follows:^ Plaintiff therefore prays judgment against said defendant for the sum of dollars, with interest on dollars ($ ) from , and on dollars ($ ) from , and on dollars ($ ) from , and on dollars ($ ) from ,. and costs of suit, [Verification.'] R. X., Attorney for Plaintiff. No. 14. Petition by County Treasurer for Back Taxes (i). [Caption.] The above named Joseph L. Yost, citizen of the State of Ohio, says that he is the duly elected, qualified and acting treasurer of Lucas County, Ohio, and that the Lake Erie Transportation Company is a corporation duly organized un- der the laws of the State of Michigan, and that he, said Yost, as such treasurer, has in his hands all the duplicates of said, county containing the unpaid personal property taxes due him as such treasurer; that on said duplicates the above named defendant Lake Erie Transportation Company is charged with the following personal property taxes, to-wit: For the year 1893 upon $119,700.00, taxes due. . . .$3,423.42 For the year 1894 upon $243,180.00, taxes due. . . .$6,954.95 For the year 1895 upon $220,665.00, taxes due. . . .$6,399.29. For the year 1896 upon $200,400.00, taxes due. . . .$6,252.4S For the year 1897 upon $182,160.00, taxes due. . . .$5,428.37 For the year 1898 upon $165,750.00, taxes due. . . .$5,502.90 Making an aggregate sum now due and payable of thirty- three thousand nine hundred and sixty-one and 41-100 dol- lars ($33,961.41); that said defendant is indebted to said plaintiff in said sum and the same is due and wholly unpaid. That in addition to said sum of $33,961.41 now due and pay- DECLARATIONS, ETC. 2J able, there is a further sum of 5 per cent, thereon due as penahy which said plaintiff as such treasurer is entitled to receive as compensation for collecting delinquenf personal property taxes, making an additional sum as such penalty of $1,698.07; that said two sums make an aggregate sum of $35,659.48, which is now due from said defendant to said plaintiff. That a copy of the certificate containing a statement of said taxes issued by the auditor of said county to this plaintiff is hereto attached marked exhibit " A," and herewith filed. In view of the foregoing facts said plaintiff demands a judgment against said defendant for the said sum of thirty-five thou- sand six hundred and fifty-nine and 48-100 dollars, and inter- est thereon from the date of the filing of this petition. R. X., IVeriftcafion.] Attorney for Plaintiff. (i"> Taken from Yost vs. Lake Erie Transportation Co., 112 Fed. Rep. 746. No. 15. Declaration on Policy of Accident Insurance. [Caption.] The plaintiff, citizen of the state of , as administrator of C. H. B., sues the defendant, the Fidelity and Casualty Company of New York, chartered under the laws of the state of New York, having its main office in the city of New York, and a branch ofifice in the state of , for dol- lars, interest upon a policy of insurance issued to plaintiff's intestate on , insuring said intestate in consideration of the sum of dollars paid for the period of 12 months against bodily injuries sustained through external violent and accidental means. Said policy of insurance is here to the court shown. Plaintiff further avers that said intestate received bodily injuries sustained by external, violent and accidental means; 28 SUITS AT LAW. the said injuries were sustained on , from which injuries he died on , thereafter. Plaintiff avers that all the conditions, stipulations and pro- visions in said policy have .been complied with both by him- self and his intestate and demand for payment thereof duly made the same has been refused. Plaintiff therefore sues for said twenty-five hundred dollars and interest thereon, the same being due, owing and unpaid. X. & X., Attorneys for Plaintifif. No. 16. Declaration to Recover on Policy of Fire Insurance. [Caption.] A. B., plaintiff, a citizen of the state of , doing business in , under the name of A, B. Produce Company, for the use of the Union Bank & Trust Company, which is a cor- poration chartered under the laws of , having its place of business in , sues the defendant, C. D. Insurance Com- pany of America, which is a corporation chartered and organ- ized under the laws of the state of , for dollars, the value of certain goods, to-wit, Irish potatoes in bags, which defendant insured against loss or damage by fire by a policy of insurance for dollars, issued in the state of , on day of , by the defendant to plaintiff, A. B., under the name A. B. Produce Company, said policy being No. , and here to the court shown ; which goods were in a certain storehouse, in the city of , to-wit, house No. 149, on the west side of South street, loss, if any, made pay- able to said Union Bank and Trust Company, as its interest may appear, which goods were lost or destroyed by fire, on, to-wit, the day of , of which the defendant had notice and on account of which said defendant on, to-wit, , denied all liability under said policy. Plaintiffs also sue DECLARATIONS, ETC. 29 in this action for interest on the amount due and owing to the plaintiff as aforesaid. On January , said goods were assigned as collateral security to the Union Bank and Trust Company by said A. B., under the name A. B. Produce Company, of which the de- fendant had notice, to secure the payment of six thousand dollars, borrowed from said Union Bank and Trust Com- pany and«owing by said A. B., under the name A. B. Produce Company, which remain unpaid. Plaintiff demands a jury to try the issues in this cause. R. X., Attorney for Plaintiff. ■ No. 17. Petition on a Credit Indemnity Bond (i). ^Caption.] The plaintiff states that it is a corporation organized and doing business under the laws of the state of , and is a citizen of said state, having its principal place of business at , county, , in this circuit, and that the defend- ant is a corporation organized and doing business under the laws of the state of , and is a citizen of said state, having its principal place of business in , state of , and that the amount in controversy in this case is more than two thou- sand dcfllars, exclusive of interest and costs. The plaintiff further states that the defendant was at the dates hereinafter mentioned authorized by its charter to en- gage in and carry on the business of indemnifying and guar- anteeing merchants and manufacturers against loss resulting from the insolvency of debtors to whom goods and mer- chandise has been sold, or consigned for sale, upon the pay- ment of a premium therefor. That on the day of , the said defendant, in con- sideration of the payment of a premium of dollars, which 30 SUITS AT LAW. was then and there paid, the said defendant issued to this plaintiff, who was then and has ever since been engaged in the manufacture and sale of paper, its certain bond of indem- nity, wherein in consideration of said premium it guaranteed the plaintiff to an extent not exceeding the sum of twenty thousand dollars resulting from the insolvency of debtors as thereinafter defined, over and above the loss of two thousand dollars, first to be borne by the plaintiff on total gross sales, shipments and deliveries of goods, wares and merchandise amounting to four hundred thousand dollars or less, said sales, shipments and deliveries to be made between the day of , and the day of , both days inclusive, to firms, corporations or individuals actively engaged in mercantile pursuits in the United States of America, but no one debtor was to be recovered for more than ten thousand dollars net loss. That by condition eleven of said bond it was provided as follows : " The term insolvency of debtors wherever used in this bond is defined to be : Where a debtor has made a gen- eral assignment for the benefit of his creditors ; where an at- tachment for debt shall have been levied on his general stock in trade; where a writ of execution against him shall have been issued in favor of the indemnified or any other creditor and returned 'unsatisfied, except where such execution has been so issued and returned after a receiver has been appointed, where a receiver of the general stock in trade of a debtor shall have been appointed. It is agreed and understood that liability on the part of the said Credit Indemnity Company for claims against debtors whose affairs have gone into the hands of a receiver shall be established only where the said debtor proves to be insolvent, and the said A. B. Company shall furnish the said Credit Indemnity Company during the term of this bond a sworn certificate by the receiver showing that the estate of such debtor is insolvent, and that it is not possible DECLARATIONS, ETC. 3I to SO administer the estate as to pay its indebtedness in full." It was a further condition, numbered four, that notifications of claims must be delivered to the said defendant on blanks furnished and in the manner prescribed by it within twenty days after the indemnified shall have had information of the insolvency of any debtor, and must be received at the central ofifice of the company at , during the term of the bond, but the indemnified was allowed twenty days after the ex- piration of said bond in which to file notifications of claims on debtors who have been insolvent during the last twenty days of the term of said bond; and it was further provided that accounts in litigation, but not settled at the time of adjustment under this bond, may be proven under any subse- quent renewal, provided the litigation shall be terminated dur- ing the term of said renewal. It was further provided by Condition I2c that a final state- ment of all claims which have been filed in accordance with condition number four shall be made by the indemnified and forwarded to the central ofKce of said company at , in the manner prescribed and upon blanks to be furnished upon ap- plication, which final statement must be received at said office within thirty days after the expiration of said bond; and it was provided that the adjustment should be had within sixty days after the receipt of said final statement by the com- pany, and the amount then found to be due, it was provided, should then become due and payable, and by condition five it was further provided that the loss first to be borne by the indemnified should be one-half of one per cent, on total gross sales of four hundred thousand dollars, and in like ratio upon sales in excess of said sum. The plaintiff further states that on the day of , the defendant, in consideration of a further sum of dol- lars then and there paid by the plaintiff to the defendant, rerenewed the said bond of indemnity from the day of 32 SUITS AT LAW. — , to the day of , both days inclusive, on substan- tially the same terms and conditions, except that the initial loss to be borne by the indemnified was raised to dollars, or one and one-half per cent, on dollars of sales, and the same ratio on all sums in excess of that. It was further provided in the eighth condition of said re- newal as follows : " In case this bond is a renewal and the premium has been paid at or before the expiration of the preceding bond, covered losses occurring during the term of this bond on shipments made during the term of the said preceding bond may be proven hereunder, subject also to the terms, conditions and limitations of said preceding bond." The plaintiff further states that during the year covered by the first mentioned bond the plaintiff's gross sales amounted to dollars ($ ), so that its initial loss to be borne by it was dollars ($ ) ; that said plaintiff had sold and de- livered merchandise to the L. M. Paper Company, of , during the term of said bond, from which there arose and was existing an indebtedness shortly prior to , of dol- lars, ($ ). That within less than twenty days prior to said date said L. M. Paper Company became insolvent and all of its assets were taken possession of by a receiver, M. O., appointed by the Common Pleas Court of county, state of , and that on this defendant received at its office in the plaintiff's notification of said insolvency and loss, which was within twenty days from the time the plaintiff ob- tained information of said insolvency ; and on , said de- fendant received at its said office in from the plaintiff an affidavit of said receiver setting out the information and in accordance with the terms of condition eleven of said bond and a final statement of said loss, no part of which has been paid. That, furthermore, during the term of said bond this plaintiff has sold and delivered to the partnership firm of DECLARATIONS, ETC. 33 H. T. and Company, of , large amounts of merchan- dise; that on , the said H. T. and Company be- came insolvent and all of the assets thereof were taken pos- session of by a chattel mortgagee; and on , said de- fendant received at its office in , a notification from this plaintiff of said insolvency and loss, which was less than twen- ty days after the plaintiff first obtained information thereof, and on , a final statement thereof was received by said defendant. That at the time said H. T. and Company became insolvent they were indebted to this plaintiff in the sum of dollars ($ ), no part of which has since been paid. That shortly after the failure of said H. T. and Com- pany this plaintiff sued the individual members of said partnership in the Circuit Court of county, , up- on said claim in several suits upon notes that had been given for a part of said account, and upon the balance as an open account ; , and all of said suits were contested and the whole of said indebtedness was in litigation on and after , but on the day of , this plaintiff obtained a judgment against H. T. and J. M., partners as H. T. and Company, the only members of said firm within the jurisdiction of said court, which was a court having jurisdiction of the subject matter of said suits, and on the day of , caused an execution to issue thereon, which was returned unsatisfied by the sheriff of said county, , and on the day of , this plaintiff made its final statement of said loss to the defendant, which was received at its office in the city of , on the day of , no receiver having been appointed of said H. T. and Company's assets ; but said defendant has ever since the first notification of said loss repudiated all liability for any part of the same and has never since adjusted or paid any part thereof. Wherefore plaintiff prays judgment against said defendant j34 suits at law. for the sum of dollars, with interest from , and its •costs. R. X., Attorney for Plaintiff. [Verification.'] (i) Taken from Champion Coated Paper Company vs. American Credit & Indemnity Co., 103 Fed. Rep. 609. No. 18. Petition to Recover for Libel. [Caption.] W. C, a citizen of the state of , brings this, his civil action at law against E. C. and O. O., the defendants, who are citizens of the state of and reside in the District thereof; and thereupon the said plaintiff complains for that the said W. C. is now a good, true, honest, just and faithful citizen, and as such hath always behaved and conducted him- self, and until the committing of the several grievances by the said E. C. and O. O., as hereinafter mentioned, was always reputed, esteemed and accepted by and amongst all his neigh- bors and other good and worthy citizens to whom he was in any wise known, to be a person of good name, fame and credit, to wit, in the District of , aforesaid. And whereas, also, the said W. C. hath not ever been guilty, nor until the time of the committing of the said sev- eral grievances by the said E. C. and O. O. as hereinafter mentioned, been supposed to have been guilty of theft, em- bezzlement, larceny, or any other such crime or dishonesty. By means of which said premises, he, the said W. C, be- fore the committing of the said several grievances by the said E. C. and O. O., as hereinafter mentioned, had deservedly ob- tained the good opinion and credit of all his neighbors, and other good and worthy citizens to whom he was in any wise known, to wit, in the District of , aforesaid. Yet the said E. C. and O. O. well knowing the premises, but greatly envying the happy state and condition of the said DECLARATIONS, ETC. 35 W. C, and contriving and wickedly and maliciously intend- ing to injure the said W. C. in his said good name, fame and credit, and to bring him into public scandal, infamy and disgrace, with and amongst all his neighbors and other good and worthy citizens, and to cause it to be suspected and be- lieved by those neighbors arid citizens that he, the said W. C, had been and was guilty of theft, larceny and embezzlement, and to subject him to the pains and penalties by the laws of the state of , made and provided against and inflicted upon persons guilty thereof; and to vex, harass, oppress, im- poverish and wholly ruin him, the said W. C. heretofore, to wit, on the day of , at , in the District of , aforesaid, falsely and maliciously did compose and pub- lish, and cause and procure to be published of and concerning him, the said W. C, a certain false, scandalous, malicious and defamatory libel containing, amongst other things, the false, scandalous, malicious, defamatory and libelous matter follow- ing,* of and concerning him, the said W. C, that is to say, " that after a little more than a year's service, the Dayton Company " ( Thereby meaning the E. F. Company of , of which the said E. C. was president, and of which the said O. O. was general manager, and in which the said E. C. and O. O. had respectively large pecuniary interests, ) " dispensed with the services of the said C." (by the said C, meaning him, the said W. C, and meaning that he, the said C. had been in the employ of, and had rendered services to the said E. F. Company for upwards of a year, ) " about which time " (thereby meaning the time at which the services of the said C. to the said E. F. Company terminated), "the said W. C." (thereby meaning W. C, the plaintiff) " carried from the office of the Dayton Company" (thereby meaning the office of the said E. F. Company) " certain drawings of a com- puting scale" (thereby meaning that the plaintiff, W. C, had unlawfully taken and carried away certain of the personal goods of the E. F. Company, and thereby meaning that the 36 SUITS AT LAW. said W. C, the plaintifif, was guilty of theft, larceny and embezzlement), "practically the same as the scale now made by the K. S.. Company," (thereby meaning and intending a corporation of the name of the K. S. Company, organized and existing under the laws of the state of , at in the said state) " and for the manufacture of which suit was brought on the 6th inst. for infringement " (thereby mean- ing that suit had been brought by the said E. F. Company against the said K. S. Company for infringement of certain letters patent for invention of the United States of America), and the said W. C. hereunto annexes and makes part hereof a copy in full of the said false, scandalous and malicious, defam- atory and libelous matter marked Exhibit " A." By means of the committing of which said several griev- ances by the said E. C. and O. O. as aforesaid, he, the said W. C, has been and is greatly injured in his said good name, fame and credit, and brought into public scandal, infamy and disgrace with and amongst his neighbors and other good and worthy citizens, in so much that divers of those neighbors and citizens to whom the innocence and integrity of said W. C. in the premises were unknown, have, on account of the committing of the said grievances by the said E. C. and O. O. as aforesaid, from thence hath suspected and believed and still do suspect and believe him, the said W. C. to have been and to be a person guilty of theft, larceny and embezzlement, and have by reason of the committing of the said grievances by the said E. C. as aforesaid, from thence hath wholly refused and still do refuse to have any transaction, acquaintance or dis- course with him, the said W. C, as they were before used and accustomed to have, and otherwise would have had, and the said W. C. has been and is by means of the premises other- wise greatly injured, to wit: at the District of aforesaid, wherefore the said W. C. saith that he is injured DECLARATIONS, ETC. 37 and has sustained damage to the amount of one hundred thousand dollars. And therefore he brings his suit. X. & X., Attorneys for Plaintiff. IVerMcation.l (i) Taken from Culmer vs. Canby, loi Fed. Rep. 195. No. 19. Declaration in Replevin for Lumber Cut on Lands Claimed by Both Parties (i). \_C option.] The M. Lumber Company, a corporation organized and existing under the laws of the state of and citizen of said state, plaintiff herein, by Messrs. X. & X., its attorneys, complains of A. C. and the Bay Lumber Company, a corporation organized and existing under the laws of the state of and citizen of said state, defendants herein, who have been duly summoned to answer the said plaintiff herein, of a plea wherefore said defendants took and unlawfully de- tained certain goods and chattels, property of the said plain- tiff described in the writ of replevin this cause and hereinafter mentioned. And thereupon the said plaintiff, by Messrs X. & X., its at- torneys, complains against the said defendants for that they, the said defendants, heretofore, to wit: on the day of , A. D. , in the county of and state of , in said district, received the goods and chattels hereinbefore referred to from it, the said plaintiff, to wit, about twenty- two hundred (2,200) pine saw logs, more or less, scaling about five hundred twenty thousand, five hundred (520,500) feet, board measure, which were cut by the defendant, A. C, •during the logging season of 1895 and 1896, from the south- west quarter of section twenty-five (25), in township forty- four (44) north, of range thirty-six (36) west, in said 38 SUITS AT LAW. county of Iron, which said logs were bark-marked XII and end-marked ® , of great value, to wit, exceeding the value of two thousand dollars ($2,000), exclusive of inter- est and costs, to be delivered to said plaintiff when they, the said defendants, should be thereunto afterwards requested. And the said plaintiff further alleges that the said logs were cut from the lands above described by the said defendant, A. C, in violation of an order made by this court, on the equity side thereof, on the day of , A. D. , in a cause therein pending between the United States of America as complainants claiming title to said land, and the Lake Railway Company, The M. Lumber Company and The W. D. Company (Limited), as defendants, claiming title as against the United States, wherein a bond was given by the said defendants in said suit to the United States for its ben- efit, and the benefit of all parties in interest, as required by said court in making said order, which said order permitted the cutting of said logs by the said M. Lumber Company, plaintiff herein, and which is one of the defendants in said equity suit, and the said defendants deny the validity of said order as binding on them, or as conferring any rights on the plaintiff herein, which is one of the questions in controversy in this suit. The said M. Lumber Company also claims the right to cut said timber, and to said timber when cut, under and by virtue of a certain license and purchase from the Lake Rail^ way Company, which company, as the plaintiff alleges, and as was claimed by said company, was the owner of said land under an act of Congress approved July 3, 1866, granting said lands to the state of to aid in the construction of a harbor and ship canal at Portage Lake, Keweenaw Point, Lake Superior, in said state, and under a confirmation of the selection thereof under said grant, by Act of Congress ap- proved March 2, 1889, entitled : " An Act to forfeit lands granted to the state of to aid in the construction of a DECLARATIONS, ETC. 39 railroad from to in said state," and that said Lake Railway Company, after the making of said license and sale to said M. Lumber Company, plaintiff herein, sold and con- veyed said lands, subject to said license and sale of the tim- ber on said lands, to the K. Association (Limited), a corpo- ration organized and existing under the laws of the state of , and a citizen of the Division of the District thereof. Said A. C. claims that he had a bona Ade pre- emption claim on said land, arising or asserting by actual oc- cupation of the land under color of the laws of the United States, on the first day of May, 1888, "and that the selection thereof under said canal grant was therefore not confirmed. Said A. C. also claims that his said alleged pre-emption claim was confirmed by said Act of March 2, 1889, and such con- firmation operated to vest in him the title to said land, and the right to cut and remove the timber therefrom, and the ownership of such timber, superior to the rights of the plain- tiff under the Acts of Congress herein mentioned, all of which claims are controverted by the plaintiff. Said A. C.'s claim of actual occupation of said lands is also based on alleged actual possession of only a small part thereof, and the plaintiff insists that such actual occupation of a portion of said land can not be extended by construction so as to constitute such occupation of the whole land as is in- tended by said act of Congress. And the said plaintiff claims that it is a hona Ude pur- chaser of the said pine timber, for value, and that the said Lake Railway Company, and said K. Association (Limited) are hona Ude purchasers of said land, for value, and that the title and rights of the said- Lake Railway Company and of the said K. Association (Limited) to said land, as well as the title of said plaintiff to said pine timber, was confirmed by Act of Congress approved March 2, 1896 : entitled " An Act to provide for the extension' of the time within which 40 SUITS AT LAW. suits may be brought to vacate and annul land grants, and for other purposes." And said Bay Lumber Company claims to have contracted with said defendant, A. C, for the sale of the said pine logs, and to be entitled to the possession thereof. And the determination of this suit involves the construc- tion of the several Acts of Congress aforesaid and of the order of this court, on the equity side thereof, in the suit above mentioned. Yet the said defendants, although requested so to do, have not delivered said goods and chattels or any or either of them, to the said plaintiff, but have unlawfully detained, and still do unlawfully detain the same, to the damage of said plaintiff of five thousand dollars ($5,000.00). And therefore it brings suit, etc. X. & X., Attorneys for Plaintiff, (i) Taken from Cunningham vs. Metropolitan Lumber Co., no Fed. Rep. 332. No. 20. Declaration in Ejectment. ^Caption.'] The plaintiff, A. B., who is a resident of , in the state of , and a citizen of the state of , sues the defendant, C. D., who is a resident of county, in the division of the district of , and a citizen of the state of . For that the plaintiff is the owner, and entitled to the im- mediate possession of a tract of land of the value of $ , situate, lying and being in conuty, , and described as follows : Beginning at two white oaks and pointers on the bank of Caney Fork river, being the northwest corner of Wm, Hud- gen's 5,000 acre survey; thence east on his line 44734 poles to a corner of land conveyed to Christian Franks; thence DECLARATIONS, ETC. 4I north with said Franks' Hne 895 poles to a corner; thence west 447J^ poles to a Spanish oak, hickory and post oak pointers, a corner, thence south 895 poles to the beginning, containing 2,500 acres. And being the lawful owner of said land as aforesaid, the plaintiff avers that on, to wit: the day of , he was in the peaceable possession thereof; and afterwards, to wit: on the day of , the defendant unlaw- fully entered thereon, and unlawfully withholds and detains the same from the plaintiff, together with $ due the plaintiff as damages for the. detention thereof; wherefore the plaintiff sues to recover said land, and the damages aforesaid, and demands a jury to try this cause. R. X., Attorney for Plaintiff. No. 21. Declaration in Trespass and Ejectment. [Caption.J The plaintiffs, who are citizens of the state of , resid- ing at , therein, complain of the defendants, C. D., E. F. and G. H., who are citizens of the state of , residing in the division of the district thereof, in an action of trespass and ejectment. For that heretofore, to wit, on day of , the plain- tiffs were lawfully entitled in fee and were in possession of the following described property situated in the county of , in the said district, to wit, acres of land in the said county situated in the low lands of the Mississippi river above Fort Pillow and north of Cole Creek, bounded as follows, to wit: [Here set out description of property.'] All of the said property is of the value of exceeding $ . And the plaintiffs being so entitled to the said property, and so in possession thereof, the said defendants, to wit, on the 42 SUITS AT LAW. said day of , at the said county of , unlawfully and without right entered into and upon the said premises, and falsely and unjustly set up title thereto, as in them re- spectively, and cut timber therefrom and removed the same, and exercised acts of ownership thereof under such false and unjust claim of title, and denied and refused to recognize the claim of these plaintiffs to the title, or their possession there- under, and wholly refused to admit and repudiated the same, as they still do. Wherefore the plaintiffs have been injured and damaged to the amount of $ , and they bring their suit for the re- covery of the said lands and the said damages. R. S., [VerHication.] Attorney for Plaintiffs. No. 22. Petition by U. S. for Timber Trespass. To the Honorable the Judge of the District Court of the United States in and for the District of : The petition of the United States respectfully represents that C. D., E. F., and G. H., in the district of , and within the jurisdiction of this court, are jointly and sev- erally indebted unto the United States in the sum of $ , with six per cent, interest on said .sum from the day of , A. D. — — , till paid, for this, to wit: The market value at , the place of delivery of pine trees, the property of the United States, which said trees were illegally, tortuously and in bad faith cut and removed, during the year A. D. , by C. D. from the public lands of the United States, viz: [here describe the lands.'] and which said pine trees were by said C. D. sold and delivered at , to said E. F. and G. H., who purchased same in bad faith, and, after converting same into lumber, sold and disposed of said lumber for their own use and benefit, in DECLARATIONS, ETC. 43 fraud of your petitioners' rights, and with full knowledge at the date of said sale and delivery, of the facts hereinbefore set forth, thus rendering themselves liable, jointly and sev- erally with said C. D., the original trespassers, unto the United States for the full market value, after manufacture into lumber of said pine trees. Petitioners aver that said pine trees, rendered into lum- ber, yielded feet, board measure, and that said lumber was well worth, at a fair market value, at the place of de- livery, $ per thousand feet, or said sum of $ , for -which said sum said C. D., E. F. and G. H. are jointly and severally liable unto the United States, with interest as ■claimed. Petitioners allege amicable demand without avail. Wherefore, your petitioners pray for citation to said parties defendant, and for service of this .petition, and, after legal hearing and delay, for judgment in their favor against said C. D., E. F. and G. H., the defendants, jointly and severally, for said sum of $ , with interest as claimed. Petitioners pray for all costs and general relief. J. H. U. S. Attorney, District of . (i) See R. S. Sec. 2461, and Act of June 3, 1878, 20 Stat, at L. 90. The U. S. may sue for the conversion of the timber, even if the de- fendant has been acquitted of criminal charge therefor. Stone vs. U. S., 64 Fed. Rep. 667. See also U. S. vs. Scott, 39 Fed. Rep. goo; U. S. vs. St. Anthony R. Co., 114 Fed. Rep. 722. No. 23. Petition by the United States to Recover Penalty under R. S., Sees. 4386 to 4388 (i). [Caption.] The United States of America, plaintiffs, by J. H., United States Attorney for the district of complain of the defendant, the C. D. Railroad Company, and states : That heretofore, to wit, on the day of in the 44 SUITS AT LAW. year of our Lord nineteen hundred and , and before and ever since said date said defendant was a corporation created by and organized and existing under the laws of the state of , and carried on its business in the district of , and was at said times and is now a railroad company, within the United States of America, and owned and operated a railroad which formed part of a line of road over which cat- tle and swine and other animals were conveyed from one state to another, to wit: from the state of to the state of , and from the state of to the state of , and over which said line of road the cattle and swine hereinafter mentioned were conveyed from the state of to the state of , and from the state of into another state, to wit, the state of , and which said railroad as aforesaid, owned and opierated by .the defendant extends from in the said state of to in the said state of , and the M. & O. Railroad Company was then and there a cor- poration created by and under the laws of the state of , and then and there owned and operated another railroad, which said railroad so owned by said M. & O. Railroad Company connected with said road of said defendant at Station, in the state of and extended from Sta- tion in said state of , to said Station, in said state of . And on the said day of , 19 — , at half past eight o'clock in the morning, said M. & O. Railroad Company re- ceived from one M. D., at Station aforesaid, a great many, to wit, one hundred and ninety-nine cattle and two hundred and forty swine, which said cattle and swine were loaded into six cars, and six separate bills of lading were made and delivered by defendant to said M. D., and said defendant un- dertook and agreed to convey said cattle and swine to , in the state of , and then and there confined said cattle and swine in cars, forming a part of a train of cars and con- veyed said cattle and swine over the railroad of said M. & DECLARATIONS, ETC. 45 O. Railroad Company to Station aforesaid, without un- loading said cattle or swine, and then and there delivered said cattle and swine to defendant, which the defendant then and there undertook and agreed to convey said cattle and swine to aforesaid, and did convey said cattle and swine with- out unloading the same to city, in the state of , and said cattle and swine did not arrive at said city until o'clock in the afternoon of the day of of 19—. And said defendant, within the jurisdiction of this court, did knowingly and willingly confine said cattle and swine in railroad cars for a period of more than twenty-eight consec- utive hours, to wit,, for more than thirty-one consecutive hours, without unloading said cattle and swine for any pe- riod of rest, water and feeding, said period of thirty-one hours including the period said cattle and swine were con- fined on the road of said M. & O. Railroad Company, with- out unloading the same. And said defendant was not prevented from so unloading said cattle and swine by storm or other accidental causes. And said cattle and swine were not carried in cars in which they could or did have proper food, water, space, or oppor- tunity to rest, contrary to the form of the statute in such cases made and provided. The plaintiff further states that the allegation contained in the petition herein, that the said cattle and swine so re- ceived by the said M. & O. Railroad Company at said time were received at Station, was made by mistake — that the fact is, said cattle and swine were received by said rail- road company at Station on said railroad. Whereby and by virtue of sections numbered 4386 and 4388 of the Revised Statutes of the United States, a right of action hath accrued to the plaintiffs, and the said defendant hath forfeited and become liable to pay to plaintiffs a pen- 46 SUITS AT LAW. alty of not less than $100.00 and not more than $500.00 for each and every of said six car loads of cattle and swine. Wherefore the plaintiff prays judgment for $ , and for its costs herein expended, and for all proper relief. J. H., United States Attorney. (i) Taken from the record in the case of Newport News & Miss. Valley R. Co. vs. United States, 61 Fed. Rep. 488, 9 C. C. A. 579. No. 24. « Declaration for Infringement of a Patent. See under title " Patents." No. 25. Declaration for Infringement of a Copyright or Trade-Mark. See under title " Copyrights and Trademarks." PLEADINGS BY DEFENDANT, ETC. 47 PLEADINGS BY THE DEFENDANT AND REPLY BY PLAINTIFF. No. 26. Demurrer to Declaration for Want of Jurisdiction (i). ^Caption.] The defendant, C. D., comes by his attorney and demurs to the petition [or declaration or as may be'], for the reason that the said petition does not state a cause of action against this defendant within the jurisdiction of this court. R.Y., Attorney for Defendant. (l) Where the petition or declaration does not set forth a ground of federal jurisdiction, the parties may raise the question by demurrer or the court may dismiss the case sua sponte. Act of March 3, 1875, 18 Stat, at L. 470, Sec. 5 ; Nashua R. R. Co. vs. Lowell R. R. Co., 136 U. S. 373; R. R. Co. vs. Swan, in U. S. 379. No. 27. Plea to the Jurisdiction (i). ICaption.l C. D., the above named defendant specially appearing un- der protest for the purpose of this plea and for no other, says that this court has no jurisdiction of this case for the reason that the said C. D. is not a citizen or an inhabitant of the state of , as set forth in the petition, but that he is a cit- izen and resident of the state of , of which state the plaintiff is also a citizen. Wherefore, he prays that this case be dismissed and that he go hence without day. C. D. (i) Where the declaration sets forth a case within the federal juris- diction and the defendant wishes to contest the facts he must interpose a plea to the jurisdiction. Hartog vs. Memory, 116 U. S. 588. Where the state practice permits such pleading, under R. S. Sec. 914 48 SUITS AT LAW. the federal courts will permit issue of jurisdiction to be raised in an answer. Roberts vs. Lewis, 144 U. S. 653. The general rule is that by pleading to the merits, the defendant ad- mits adverments, which state facts sufficient to establish jurisdiction. Sheppard vs. Graves, 14 How. 505; Butchers and Drovers Stockyards Co. vs. L. & N. R. Co., 67 Fed. Rep. 40. No. 28. General Demurrer. [Caption.'] The defendant, the C. D. Co. comes by its attorneys and demurs to the petition [or, declaration, or as may be}, for the reason that the said petition does not state a cause of action against this defendant upon which this plaintiff can recover. R. Y., Attorney for Defendant. No. 29. Demurrer to Declaration for Damages for Personal Injury. [Caption.] The defendant, C. D. Railway Company, comes by attor- ney and demurs to the original declaration and the amended declaration of the plaintiff in this case and for causes of de- murrer shows: First. That said original declaration as a whole sets out no cause of action against this defendant upon which said plaintiff as administrator can recover. Second. That said amended declaration as a whole sets out no cause of action against this defendant upon which said plaintiff as administrator can recover. Third. Defendant demurs to each count in said original declaration on the ground that plaintiff has not alleged facts which entitle him to recover against this defendant. Fourth. Said defendant likewise demurs to said amended declaration because therein the plaintiff has set out no facts which entitle him to recover against this demurrant. PLEADINGS BY DEFENDANT, ETC. 49 Fifth. This defendant demurs to the first count of said original declaration because therein plaintiff shows that the plaintiff's intestate was an employe of the Northern Railway- Company, and that duty was owed to him alone by said rail- way company and that if negligence of any person caused the injuries to him resulting in his death it was the negligence of his co-employes and fellow-servants for which negligence hip administrator has no right to recover. Sixth. This defendant further demurs to the first count of said original declaration because the allegations and charge in said count are not particular as it is by law required that they should be, but are so general, vague, indefinite and un- certain that this defendant can not safely and intelligently plead to them. Seventh. This defendant demurs to the second count of said original declaration on the ground that the plaintiff's in- testate was alone an employe of the Northern Railway Com- pany and that duty was owed alone to him by that company and that he has so charged, and that if the negligence of any one caused the injuries to him resulting in his death it was as he has alleged, the negligence of said Northern Railway Co., and of its servants, his co-employes, and because he has alleged no specific act of negligence against this demurrant for which he could recover. Eighth. This defendant further demurs to said second count because the allegations thereof are so vague, indefinite and uncertain that this defendant can not safely and intelli- gently plead thereto and because they are too general and are not particular as is by law required. Ninth. This defendant demurs to the amended count of the plaintiff's declaration because the suit is against three de- fendants and in the other counts of the declaration a joint re- covery is sought while in the said amended count the allega- tions as to the defects in the engine and of the negligence ap- plied exclusively to defendant. Northern Ry. Co., and in no- 50 SUITS AT LAW. wise to this defendant, and there is no allegation of negligence as to this defendant as regards the alleged defects in said en- gine or otherwise, and if recovery were to be had by reason of said defect it must necessarily be against the Northern Ry. Co. alone while the proceeding is against all the defend- ants jointly. Tenth. This defendant demurs to the fourth count in said original declaration on the ground that the allegations of neg- ligence are so vague, indefinite and uncertain that this defend- ant can not join issue thereon and can not safely or intelli- gently plead thereto notwithstanding and contrary to the requirements of law that said allegations should be definite and certain; and because in and by said count no duty is shown to have been owing by this demurrant to plaintiff's in- testate and because the negligence resulting in the death of plaintiff's intestate, if any existed, was that of said intes- tate's co-employes. Wherefore, this defendant demurs and prays judgment of the court on each and all of the grounds of demurrer herein taken. R. Y., Attorney for C. & D. Ry. Co. No. 30. Demurrer to Answer. {Caption.'] Now comes the plaintiff, and demurs to the amended an- swer of defendant filed herein, for the reason that the same does not state facts sufficient to constitute a defense to the cause of action alleged in the petition. Wherefore, plaintiff prays judgment as in its original pe- tition. R. Y., Attorney for Plaintiff. PLEADINGS BY DEFENDANT, ETC. 5 1 No. 31. General Demurrer to an Amended Answer. ICaption.] Now comes the plaintiff and demurs to the first ground of defense contained in the second amended answer of the de- fendant filed herein, for the reason that the facts and state- ments therein contained are not sufficient in law to constitute a defense to plaintiff's petition or the several causes of action therein contained. Plaintiff also demurs to that portion of the second amended answer denominated the second ground of defense, for the rea- son that the facts therein stated dp not in law constitute a defense in favor of the defendant and against the plaintiff's petition or the several causes of action therein contained. R. X., . ' A.ttorney for Plaintiff. No. 32. Plea Not Guilty in Trespass by Cutting Timber. ^Caption.] And the defendants, for plea, say they are not guilty of cutting and removing the timber from lands of plaintiffs, as in the declaration alleged. R. Y., Attorney for Defendants. No, 33. Plea Not Guilty in Ejectment. [Caption.] The defendants C. D. and E. F., come, and for plea say they are not guilty of wrongfully withholding the premises from the plaintiffs claimed in the declaration. R. Y., Attorney for Defendants. 53 SUITS AT LAW. No. 34. Plea, General Issue and Contributory Negligence. [Caption.l The defendant for plea to the several counts of the decla- ration says it is not guilty of the wrongs and injuries com- plained of in plaintiff's several counts of his declaration, and avers that plaintiff is not entitled to a recovery. Second. And for further plea to the several counts of the declaration says the injury complained of was the result of A. B.'s own negligence, whereby his negligence being the con- tributory cause of the injury, defendant is not liable. R. Y., Attorney for Defendant. No. 35. Plea of General Issue with Notice of Set-OfF. \_Caption.] The defendant comes and demands a trial of the matters set forth in the plaintiff's declaration. R. Y., Attorney for Defendant. To G. P., ■ Attorney for the Plaintiff. Please take notice that the defendant will in like manner insist upon and give in evidence under the general issue above pleaded that before and at the time of the commencement of this suit, the plaintiff was and still is indebted to the defend- ant in the sum of twenty-five thousand dollars, for the price and value of goods then sold and delivered by the defendant to the plaintiff at its request. And in like sum for the price and value of work then done, and materials for the same pro- vided, by the defendant for the plaintiff, at its request. And in like sum for the price and value of work then done by the defendant for the plaintiff, at its request. And in a like PLEADINGS BY DEFENDANT, ETC. 53 sum for money then lent by the defendant, to the plaintiff, at its request. And in a like sum for money then paid by the defendant for the use of the plaintiff, at its request. And in a like sum for money then received by the plaintiff for the use of the defendant. And in a like sum for money found to be due from the plaintiff to the defendant on an account stated between them. Which said several sums of money, or so much thereof as will be sufficient for that purpose, the defend- ant will set off and allow against any demand of the plaintiff to be proved on said trial, and will take judgment against the plaintiff for the amount of the balance, if any, found upon such trial, to be due from the plaintiff to the defendant. R. Y., Attorney for Defendant. Dated this day of , A. D. . No. 36. Pleas to a Declaration by an Engineer for Damages for Per- sonal lojury. \_Caption.] First. The defendant for plea to the declaration and the four counts of the same says it is not and was not guilty of the wrongs and injuries as plaintiff both alleged. R. Y., Attorney for Defendant. Second. And for further plea to the first count of the dec- laration says, if the injury resulted from the negligence of the conductor, as plaintiff has alleged, then the defendant is not liable, as the said conductor and engineer were fellow servants. R. Y., Attorney. Third. And the defendant for further plea to the second count of the declaration says, if the injury resulted from the negligence of the telegraph operator at Jackson and Milan, 54 SUITS AT LAW. or either, as plaintiff has alleged, it is not responsible as it would be the act of a fellow servant of the deceased. R. Y., Attorney. Fourth. And for further plea to the third count of the declaration that the injury resulted from the negligence of the operator or agent or some one for him at Milan, it states it is not liable because it would be the negligence of a fellow servant of the deceased. R. Y., Attorney. Fifth. And further plea to said third count that the ac- cident resulted from the negligence of some one at Milan, it is not responsible for the acts of said third party. R. Y., Attorney. Sixth. And for further plea to each count of the declara- tion it says if the accident occurred it was the fault of a fellow servant of said engineer, for which it is not responsi- ble. R. Y., Attorney. Seventh. And for further plea to each count of the decla- ration it says if the accident occurred it was by the negli- gence of the deceased for which the defendant is not liable. R. Y., Attorney. Eighth. And defendant for further plea to each and every count of the declaration says the accident or injury was the result of the deceased's disobedience of the rules and regula- tions of the defendant. R. Y., Attorney. Ninth. And for further plea to each count of the declara- tion it says it is not liable ; that the deceased at the time of the accident was acting in direct violation of the rules of the de- fendant which he knew of, R. Y., Attorney, Tenth. And for further plea says the accident was the re- sult of deceased disobeying the rules of defendant. R. Y., Attorney. PLEADINGS BY DEFENDANT, ETC. 55 No. 37. Plea of Statute of Limitations. ICaption.] And for further plea in this behalf said defendant says, plaintiff's . cause of action, if any he had, accrued more than twelve months next before the commencement of this suit and this defendant is ready to verify. R. Y., Attorney for Defendant. No. 38. • Pleas to a Declaration on Policy for Accident Insurance. [Caption.] First. The defendant, the Fidelity and Casualty Com- pany of New York, for plea says that it owes the plaintiff nothing as in his declaration he hath alleged. Second. The defendant craves oyer of the policy of acci- dent insurance in the declaration mentioned and it is read to it in these words: [Here set out policy in haec verba.] Third. For further plea defendant says that the statement made in said application for said policy of insurance that said intestate was then in sound condition mentally and physically was false and untrue in that the said intestate had a few months theretofore received a severe blow on the head which caused his brain to become and be diseased, and in conse- quence thereof he was not in sound condition physically, and at the time of the making of said statement. Said in- testate was not in a sound mental condition and by reason of the falsity of said statement and the breach of said war- ranty, the policy of accident insurance mentioned in the dec- laration was avoided from the beginning. Fourth. Defendant for further plea says that plaintiff's intestate committed suicide by, on , voluntarily, wan- tonly and with the intent to take his life, jumping from a train en route from to , moving at a high rate of speed. 56 SUITS AT LAW. he being a passenger on said train; that said intestate inten- tionally and of a purpose, fell, sprang or jumped from said train with the intent of inflicting injury upon himself and as a result thereof he was thrown against the ground on or near said railway track with great violence receiving in- juries from which he died four days later. Y. & Y., Attorneys for Defendant. No. 39. Plea that Suit Has Abated by Death of only Beneficiary, [Caption.'] Now comes the defendant, the C. & D Railroad Company and for plea to the said declaration filed herein says : That the deceased, E. F., died unmarried, without chil- dren, and leaving surviving him as his next of kin his fa- ther, G. F., who alone was entitled to recover any damages for the wrongful death of said E. F. Since the bringing of this suit, said father, G. F., has died ; thereupon defendant comes and says that this suit abated upon the death of the father, G. F., and can no longer be maintained. And this it is ready to verify. R. Y. and G. Y. come and make oath that they are attor- neys Tor the C. & D. Railroad Company and do say upon oath that the matters and things stated in the foregoing plea are true in substance and in fact. This plea is not interposed for delay. R. Y. G. Y. Sworn to and subscribed before me this day of , H. M., Clerk. PLEADINGS BY DEFENDANT, ETC. 57 No. 40. Disclaimer in Action in Ejectment. ^Caption.] And the defendant, E. H., comes and disclaims all title to the property set forth and described in plaintiffs' declaration. Y. & Y., Attorneys for Defendant. No. 41. Answer of Ry. to a Petition for Damages for Personal Injury. ICaption.] The defendant, for answer to the petition of plaintiff here- in, denies that on the day of , or other date, it or its agents in charge of its train, did with gross and wilful negligence, or in such reckless or careless manner operate one ■of defendant company's trains that the plaintiff was sudden- ly and without warning of the approach of the train, or at all, ■struck and knocked from the said public highway and per- manently injured, etc. It denies that the plaintiff was at- tempting to cross a railway track at or near a public crossing at the time she was struck and injured by defendant's train. It denies that the plaintiff was injured by any negligence of it, or its agents, in the operation of any of its trains at the time and place specified in the petition and amended petition. It states that it has not sufficient knowledge or information upon which to form a belief as to the statements of plaintiff's petition, as to whether or not all the toes on her left foot were cut off, or said left foot badly mashed, or her right arm broken, but denies that by the carelessness or recklessness of its agent, after the plaintiff was injured, in treating plaintiff's injuries, the plaintiff has sustained a stiff arm. It denies that plaintiff has been permanently injured or permanently dis- abled from earning a livelihood. It denies that plaintiff has been damaged in the sum of $ , or any other sum. Where- fore, etc. 58 SUITS AT LAW. Par. 2. The defendant, further answering, states that at the time of the injury complained of, the plaintiff was guilty of negligence which contributed to her injury, and but for which negligence upon her part, the injury would not have happened; that said contributory negligence was committed as follows, to wit, the said plaintiff, after leaving the train of defendant and deposited upon defendant's platform in safety, carelessly and negligently left the way prepared by defendant for her and other passengers to cross its tracks to their destination, which way was a perfectly safe way, and pursued a shorter and more dangerous route, and one not furnished or authorized by defendant, although the reg- ular way and route furnished by defendant was plain and visible, the plaintiff walked immediately around the rear end of the coach she had just left and started to walk diagonally across defendant's tracks, and without stopping or looking or listening stepped upon an adjoining track of defendant, when she was immediately struck by an engine of defendant pass- ing in the opposite direction, and without fault upon defend- ant's part, received the injuries complained of. Wherefore, having fully answered, defendant prays that it be hence dismissed, with costs herein expended. R. Y., [VerHication.'] Attorney for Defendant. No. 42. Answer of Receivers to a Petition for Damages for Ejectment from Railway Train. {^Caption.'] Now come the defendants, E. F. and G. H., receivers of the C. & D. Railroad Company, and for answer to the peti- tion of the plaintiff, say that they admit that the plaintiff is a resident of county, , as averred in his petition ; that the C. & D. Railroad Company is a corporation, and that these defendants have been duly appointed and qualified PLEADINGS BY DEFENDANT, ETC. 59 and are acting as the receivers thereof, and that they were such receivers on the date named in said petition operating the road therein described, and were then and there common carriers of passengers and their baggage over such Hne of railway. It is also admitted that the plaintiff purchased at the time named in his petition and was the owner of the book of mileage tickets described, but the defendants say that such mileage tickets in said book did not entitle the plaintiff to passage over the said road operated by the defendants. The defendants also admit that the plaintiff on the date named in his petition boarded a train upon the road so oper- ated, at , bound for , with said mileage book oi tickets, and that he presented said book to the conductor of said train for passage, as averred in said petition, but was informed by the conductor that* said book was not good over said road, and that if he desired to remain on the train, as a passenger, that he must pay his fare to his destination. This the plaintiff refused to do and he was ejected from the train by the conductor, using no more force than was necessary to accomplish the object intended. And the defendants further say that in so acting, the conductor was carrying out his in- structions in that regard. And the defendants deny each and all of the other aver- ments contained in said petition not herein either specifically admitted or denied. R. Y., Attorney for Defendants. No. 43. Answer of R. R. Co. to Petition for Damages for Personal Injury — General Denial with Defense of Contributory Negligence. [Caption.'] The defendant for answer to the petition herein, admits that it is and was a corporation organized under the laws of , 6o SUITS AT LAW. having citizenship and residence alleged, and that during the month of , A. D. , it was engaged in operating upon the railroad tracks described, under and by virtue of the ordinance alleged, said ordinance containing the provisions set forth in said petition. The defendant denies each and every other allegation there- in contained. The denial, in so far as it relates to the alleged appointment of the plaintiff as administrator of A. B., being made for want of knowledge. Defendant further states that plaintiff's intestate, A. B., was himself negligent and guilty of a want of ordinary care at the time of his alleged injuries, in this, to wit, that while in a place of safety, and with full knowledge or means of knowledge of the presence or approach of said engine and cars, and the dangers involved, he voluntarily approached the same with his team of horses and placed himself in the per- ilous situation in which his injuries, if any, were sustained; and that said want of care on the part of said A. B. di- rectly contributed to such injuries, if any as he may have sus- tained. Wherefore defendant prays to be hence dismissed with its costs. R. Y., Attorney for Defendant, [Verification.'] No. 44. Answer of Ry. Co. to Petition for Damages for Personal Injury (i). [Caption.] Defendant denies that while attempting prudently to obey the orders of its engineer, plaintiff was thrown or precipi- tated from defendant's engine, and received injuries com- plained of. It denies that its engineer, mentioned in plaintiff's peti- tion, was guilty of negligence or gross negligence in moving PLEADINGS BY DEFENDANT, ETC. 6 1 defendant's engine at said time, or in moving on the main track from a side track where the engine had been just prior thereto, or on the time of an approaching train of cars and denies that the engine was in a defective or dangerous or grossly defective or dangerous condition, or that the steps of the engine which plaintiff was required to Use in leaving said engine were improperly, dangerously or defectively con- structed and denies that the hand hold necessary for him to use in leaving the engine was in a defective or dangerous con- dition; and has no knowledge or information sufiBcient to form a belief whether in using same plaintiff's hand was caught, or his safe exit from said engine interfered with. Defendant denies that at the time, or after plaintiff was ordered to leave said engine, or while in the act of alighting from said engine, the engineer operated the engine in a dan- gerous or reckless manner, or suddenly so accelerated the speed of said engine as to greatly or at all add to the danger of plaintiff; and denies that plaintiff received all or any of his injuries by reason of the negligence or carelessness, or gross negligence or carelessness of this defendant, its agents or servants, superior in authority to plaintiff, or whose orders he was bound to obey, or by reason of the alleged defects or dangerous condition of the engine steps, hand holds or ap- pliances. Defendant denies that plaintiff did not know or could not by the exercise of ordinary care have known of the condition of the engine, hand holds and appliances. But denies that they were known to this defendant or plaintiff's superior of- ficers or agents, or could have been known to them by the ex- ercise of ordinary care to have been defective or dangerous, and denies that they were so. Second. For further answer to the petition, defendant says that the engine upon which plaintiff was riding, as al- leged in his petition, was moved at said time from the said side track to the main track with the knowledge, consent and 62 SUITS AT LAW. upon the suggestion of the plaintiff, and that the hand holds referred to were upon the outside of the engine cab and upon the tank attached to the engine, in full view of the plaintiff as he approached the said engine, and as obvious to the plaintiff as to the defendant or any of its agents or servants, that plain- tiff had long been cognizant of the position and nature of said hand holds, and had often used them before the accident, and that plaintiff, in his contact with the said engine, and the said hand holds and in leaving said engine, did so carelessly and negligently, and without heeding his own safety, and thereby contributed directly to causing and did cause the in- jury complained of in his petition, and but for such negligence and carelessness of plaintiff, said injury would not have oc- curred. Defendant further states that the engineer mentioned in the petition, was the engineer of the same engine upon which plaintiff was riding immediately before he was injured, and was the engineer of the train upon which plaintiff was en- gaged as the brakeman of defendant, in defendant's service at the time he was injured, and was then and there the fellow servant of the defendant, employed by the defendant as was the plaintiff in conducting the business of transportation of freight by railroad on said train. Wherefore plaintiff prays to be hence dismissed with its costs herein incurred and all general relief. R. Y., Attorney for Defendant. [Verification.] (i) Taken from Butler vs. 111. Cent. R. Co., 105 Fed. Rep. 1000. No. 45. Answer of a Transportation Company to Suit for Taxes (i). ICaption.] The defendant. The Lake Erie Transportation Company, for its answer herein says: PLEADINGS BY DEFENDANT, ETC. 63 It admits that the plaintiff is the duly elected, qualified and acting treasurer of Lucas County, Ohio; that this defendant is a corporation, duly organized under the laws of the state of Michigan; that the plaintiff has in his hands all the dupli- cates of said county containing the unpaid property taxes due him as such treasurer; that on said duplicate this defendant is charged with taxes for the years named in the petition on the valuations and to the amounts therein set forth for the re- spective years therein named ; and that a copy of a certificate containing a statement of said taxes, issued by the auditor of said county to the plaintiff, is attached to the petition marked " Exhibit A." This defendant denies all and singular the al- legations and statements in the petition contained not herein expressed admitted to be true. Further answering this defendant says: It is now and was during each and all of the years from 1893 to 1898, inclusive, a corporation duly incorporated and organized under the laws of the state of Michigan. At all of said times the general office for the business of said company was located in the city of Monroe, county of Monroe, and state of Michigan. At all of said times it was a citizen of said state of Michigan and a resident of said city of Monroe. The business of said company, for which it was organized, at all of said times was that of maritime commerce or naviga- tion within the state of Michigan and upon the frontier lakes and other navigable waters, natural or artificial, connected therewith. During the year 1893 the defendant owned and operated in its said business three certain steam boats or propellers, known as the Russell Sage, the John C. Gault, and the S. C. Reynolds; and during the years from 1894 to 1898, inclusive, owned and operated in its said business the above named ves- sels and in addition thereto a certain other steam boat or pro- peller, known as the George J. Gould. The valuations of personal property charged on the tax 64 SUITS AT LAW. duplicate aforesaid for said respective years consist entirely of valuations placed on said four vessels during the years aforesaid; and the taxes charged on said tax duplicates against this defendant are charged entirely in respect of said vessels. The valuation of each of said vessels during the years for which said taxes are charged, and the taxes charged against the same, respectively, are shown in the following table: Valuations V aluations Valuations Valuations Gould. Reynolds. Sage. Gault. 1893 67,800 6,000 6,000 1894 89,100 61,020 6,000 6,000 1895 80,190 54,920 6,000 6,000 1896 72,170 49>430 6,000 6,000 1897 64,960 44,480 6,000 6,000 1898 58,460 40,040 6,000 6,000 Total with Penalty. Tax Rate. Tax. 1893 1 19,700 2.86 3.423-42 1894 243,180 2.86 6,954-95 1895 220,665 2.90 6,399.29 1896 200,400 3.12 6,252.48 1897 182,160 2.98 5,428.37 1898 165,750 3-32 5,502.90. This defendant further says that in the month of March, 1899, the auditor of Lucas County, Ohio, wrongfully claim- ing that this defendant had willfully evaded making a return or statement of its personal property taxable within said county, and claiming to act under the authority of Sections 2781 and 2782 of the Revised Statutes of Ohio, placed upon the tax duplicate and certified for collection to the said plain- tiff the taxes and penalties set forth and described in the petition and the statement thereto attached. Said sums so certified for collection included a penalty of fifty per cent, of: PLEADINGS BY DEFENDANT, ETC. 65 the original amounts claimed for each of said years, which said penalty was imposed by said auditor. This defendant says that the action of said auditor in enter- ing the valuations, taxes and penalties aforesaid upon his tax lists or duplicates and certifying the same to the plaintiff for collection was wholly without warrant of law, wrongful and void. This defendant avers that it never did evade making a re- turn or statement of its property for taxation. The vessels aforesaid were not, nor was any of them, at the time the same were listed for taxation or during the years 1893 to 1898, inclusive, situated in the county of Lucas, and state of Ohio. Said vessels during all of said years were owned by this defendant company and were engaged in the carrying trade between various ports upon the great lakes, so-called, and the navigable streams tributary thereto. The, only business car- ried on by said vessels durng said years within the state of Ohio consisted of the transportation of freights from the city of Toledo, in Lucas county, Ohio, to ports in other states or the Dominion of Canada, and from ports in other states or of the Dominion of Canada, to said city of Toledo, and was exclusively interstate commerce. Each of said vessels during all of said years and up to the commencement of this suit was of the burden of twenty tons and upwards, and was duly enrolled and licensed under the statutes of the United States for the navigation of the great lakes and navigable waters tributary thereto, and thereby au- thorized to do a coasting or foreign trade in said waters. The home port of said vessels was at all said times at said Monroe, state of Michigan, and said vessels were all duly en- rolled by the collector of the collection district, including said port of Monroe, at his office in the city of Detroit, in said state of Michigan, except that said vessel, the George J. Gould, was prior to the 20th of August, 1897, temporarily enrolled at Buffalo, in the state of New York, where said ves- 66 • SUITS AT LAW. sel was built. This defendant has paid all the fees and dues of every kind required to be paid by the laws of the United States for the regulation of commerce. This defendant says that all of its personal property, includ- ing said vessels, was duly assessed for taxation by the proper authorities of the state of Michigan and the county and city of Monroe during all of said years; and this defendant paid to said authorities the taxes levied and assessed upon its said property during said period. Prior to the month of March, 1899, no tax was levied or assessed within the state of Ohio against this defendant on its said property. And this de- fendant has not at any time made any return of its said prop- erty for taxation within this state. Defendant was advised by counsel and understood and believed at all times that its said vessels were not taxable in Ohio and were not within the jurisdiction of said state or its officers. And this de- fendant alleges that said auditor and treasurer of Lucas county are and were entirely without jurisdiction or author- ity to assess said property of this defendant for taxation, or to levy and collect any taxes assessed against this defendant in respect thereof. And this defendant further says that the statutes of the state of Ohio under which, as aforesaid, said auditor and the plaintiff claim 'the right to assess and collect the taxes herein sued for, are in contravention of the Fourteenth Amendment of the Constitution of the United States, in that if carried out to the logical result they would deprive this defendant of its property without due process of law; and because by the stat- utes of the state of Ohio the said auditor is entitled to receive a fee of four per cent, of the amount of omitted taxes so as aforesaid placed by him on the tax duplicates and collected and paid into the treasury of the county. And this defendant further says that the said taxes so as aforesaid imposed upon this defendant and sued for herein, are a tax and burden upon the interstate commerce and trade PLEADINGS BY DEFENDANT, ETC. 67 carried on by this defendant in the vessels aforesaid and are imposed upon said vessels by reason of their use in the carry- ing on of such trade and commerce, and are therefore void as an interference with and obstruction of the exclusive power of Congress to regulate commerce with foreign nations and between the states. This defendant therefore prays that it may go hence with- out day and recover its costs herein. By Y. & Y., its Attorneys. State of Ohio, Lucas County, ss. A. W., being duly sworn, says he is the duly author- ized manager of the defendant herein, a corporation non-resi- dent of the state of Ohio. The facts stated in the foregoing answer are true as he be- lieves. A. W. Sworn to before me and subscribed in my presence this 2 1st day of June, 1899. [Seal.'] C. M., Notary Public, Lucas County, Ohio. (i) Taken from Yost vs. Lake Erie Transportation Co., 112 Fed. Rep. 746. No. 46. Answer of an Incorporated Village to a Petition to Recover on Bonds and Coupons. {^Caption.} First Defense. For its first defense, the defendant, answer- ing the petition herein, says : It admits that it is a municipal corporation, a village of the first class, organized and existing under and by virtue of the laws of , and located in county, within the division of the district of . 68' SUITS AT LAW. And it denies each and every other averment in the peti- tion. Second Defense. Answering the petition, and by way of its second defense thereto, it says that on or about the day of , one C. B., who was then mayor of said village of , and L. P., who was then the clerk of said village of , pretended to execute on behalf of said village what purported to be 80 bonds for the sum of $ each, to- gether with interest coupons attached thereto, which bonds and interest coupons were respectively for the sums men- tioned in the petition, and purported to mature respectively in the amounts and at the times stated in the petition. But it says that the said C. B., as such mayor, and said L. P., as such clerk, had no power or authority at the time to execute or issue such or any bonds or coupons or any of them on behalf of this defendant. And it says that said pretended bonds and coupons were not issued for the purpose of procuring necessary means to refund and extend the time of payment of certain then out- standing general fund bonds theretofore legally issued by said village, which from its limits of taxation the said village was unable to pay at maturity; and it says that there was at the time no outstanding general fund bonds or any other bonds of said village outstanding or maturing, and that the said village was not indebted at the time in any sum whatever upon any of its bonds theretofore issued, nor were any such bonds of the defendant in any sum whatever then outstand- ing, nor had the defendant at said time or theretofore issued any of its bonds; and it says that any issue of bonds by the defendant at said time would be to that extent an increase of the indebtedness in that amount of the defendant. It says that the said pretended bonds did not upon their face express the purpose for which they were purported to be issued, nor any purpose for which they purported to be issued; and ad- mitting that the defendant is a municipal corporation, and a PLEADINGS BY DEFENDANT, ETC. 69 village of the first class as averred in the petition, it denies every averment and fact stated in the petition not herein specifically admitted ; and it asks to be hence dismissed, and to recover its costs. R. Y., Attorney for Defendant. The State of , County of , ss. W. W., being duly sworn, says he is clerk of the defendant the village of , duly authorized in the premises, and that the allegations and statements in the foregoing answer con- tained are true as he verily believes. \_Seal of corporation clerk.] W. W., Clerk. Sworn to before me by the said W. W., clerk, and by him subscribed in my presence, this day of , A. D. . G. McC, ISeal.} Notary Public. No 47. Reply to Answer. [Caption.'] Now comes the plaintiff, and for reply to the answer herein filed denies each and every allegation therein contained which is not an express denial or admission of the allegations set forth in the amended petition herein filed. R. X., Attorney for Plaintiff. No. 48. Joinder and Replication. ICaption.] First. The plaintiff comes by his attorneys and joins issue on the defendant's first plea. Second. Comes the plaintiff, by his attorneys, and for repli- 70 SUITS AT LAW. cation to the defendant's second plea, says the negligence of the deceased did not materially contribute to or cause the injury complained of in plaintifif's declaration. Third. Comes the plaintiff, by his attorneys, and for repli- cation to the defendant's third plea, says the plaintiff's right of action did not accrue more than a year next before the plaintiff commenced his action. R. X., Attorney for Plaintiff. No. 49. Replication to Pleas in Suit on Policy of Insurance. [^Caption.'] Plaintiff, for replication to defendant's second plea, says : First. It is not true that the policy of insurance involved in this cause was issued in consideration and only because of certain statements and warranties made in the application for a policy. Second. It is not true that in said application plaintiff's intestate made false and untrue statements. Third. If plaintiff's intestate did make false and untrue statements in said application for insurance in the defendant's company, said statements were not made with any intent to deceive, nor did they increase the risk. Fourth. If plaintiff's intestate made false and untrue state- ments in said application for insurance in defendant's com- pany in that he stated as alleged by defendant that he had no insurance paying weekly indemnities, said statement was im- material to the risk insured against by defendant, in the event of death, and defendant has ratified said compact since the death of plaintiff's intestate and is thereby estopped. Fifth. Plaintiff further avers that said contract of insur- ance is severable, insuring plaintiff's intestate in a certain amount in the event of death from accident, and in another PLEADINGS BY DEFENDANT, ETC. ^^ amount for injury by accident, and that the statements made by plaintiff's intestate as to matters pertaining to the insur- ance ot weekly indemnity has no application to that part of the policy agreeing to pay a certain amount in the event that death resulted. Plaintiff, for replication to defendant's third plea, says : First. It is not true that plaintiff's intestate stated that he "never had fits and disorders of the brain. Second. If plaintiff's intestate said in his application that he had never had fits or disorders of the brain the same was true as stated. Third. If plaintiff's said intestate had had fits or disor- ders of the brain, he had recovered therefrom prior to the tak- ing out of this insurance, and it is untrue that his brain became disordered until the time of his death, as alleged by defendant. Plaintiff, for replication to defendant's fourth plea, says: It is not true the plaintiff's intestate was not in sound condi- tion, physically and mentally, at the time said insurance was issued to him. Plaintiff, for replication to defendant's fifth plea, says : It is not true as alleged that his intestate committed suicide on the day and in the maimer alleged in said plea. X. & X., Attorney for Plaintiffs. No. 50. Reply to Answer in Suit on Municipal Bonds. [^Caption.^ The plaintiff replying to the amended answer of the defend- ant filed herein, says : That as to all and singular the aver- ments thereof, excepting only such as are admissions of the allegations of this plaintiff's petition, this plaintiff has no 72 SUITS AT LAW. knowledge or information of the truth thereof, and therefore denies the same. Further replying, this plaintiff says that it purchased said bonds, to which said coupons were attached, on the open market, for a valuable consideration, without any notice whatever of any infirmities connected with the same, and relying upon the recitals in said bonds, that said bonds, and each of them, recited among other things as follows, to wit: " It is hereby certified that all acts and things necessary to be done precedent to and in the issuing of these bonds have been done and performed in regular and due form, as required by law, and the faith and credit of the village of are hereby pledged for the prompt payment of the principal and the in- terest hereof, at maturity." " (This bond is issued for the purpose of refunding certain bonds issued by said village, , which are taken up and discharged.)" , That by reason of said recitals as set forth in said bonds, the said village of represented that said bonds were is- sued for the purpose of refunding a legal debt of said city. And that all acts and things required to be done or performed were properly performed and done as required by law. That plaintiff, purchasing said bonds upon the open market as aforesaid, relied upon said recitals so set forth, and relied upon the representations as set forth in said bonds and defendant is now estopped to assert that said bonds were issued for any other purpose than is therein recited, and is estopped to assert the invalidity of the same. Further replying, says that of all and singular the aver- ments thereof referring to the various acts of the municipal corporation in issuing said bonds, and the purpose thereof, and the direction and proceeds thereof, this plaintiff, at the time of the purchase of said bonds, had no knowledge thereof and naught to do with said acts, purpose and proceeds. Further replying, says that when this plaintiff became the owner and holder of said bonds and coupons, that the coupons PLEADINGS BY DEFENDANT, ETC. 73 representing and evidencing the first installment of interest due on said bonds, had been detached therefrom. For any- thing this plaintiff knew to the contrary, said coupons had been paid and redeemed by said defendant. Wherefore, this plaintiff prays as in its petition. X, & X., Attorneys for Plaintiff. State of , County, ss. R. X., being first duly sworn, says that he is one of the attorneys of the plaintiff herein, duly authorized; that the plaintiff is a foreign corporation and a non-resident of the state of , and that the facts stated in the foregoing reply are true as he verily believes. R. X. Sworn to before me and subscribed in my presence, this day of , A. D. . [Seal.] . D. M., Notary Public. No. 51. Reply by Plaintiff Denying Contributory Negligence. [Caption.'] And now comes A. B., plaintiff in the above entitled cause, and for reply to the answer of the defendant, the C. & D. Railroad Company, filed herein, says that: He denies that the said injury received by the plaintiff was caused by or was the result of the plaintiff's own carelessness. He denies that the said injury received by the plaintiff was caused by or was the result of the plaintiff's own negligence ; and, He denies that any carelessness or negligence of his directly contributed to said injury. 74 SUITS AT LAW. Wherefore, plaintiff prays as in his petition, R. X., Attorney for Plaintiff. State of , County of , ss. A. B., being first duly sworn, according to law, upon his oath deposeth and saith that he is the plaintiff in the above entitled cause and that the facts set forth in the foregoing reply to the answer are true as he verily believes. A. B. Sworn to and subscribed before me, this day of A. D. . lSeal.:\ J. N., Notary Public, County, No. 52. Replication and Demurrer to Defendant's Pleas. [Caption.] For replication the defendant comes and joins issue with the defendant upon its first, third, fourth and fifth pleas. R. X., Attorney for Plaintiff. Plaintiff demurs to defendant's second plea because the matter set forth there therein has been adjudged against the defendant by the court in this cause upon defendant's de- murrer to plaintiff's original declaration and is res adjudicata. Plaintiff demurs to defendant's sixth and seventh pleas; They are each of them immaterial and insufficient, because as is alleged in the amended declaration filed in this case on , the defendant denied all liability under the policy sued on in this cause. Such denial was a waiver of all matters referred to in each of them. PLEADINGS BY DEFENDANT, ETC. 75 The plaintiff prays the judgment of the court as to whether it be necessary to make any other or further answer to said second, sixth and seventh pleas or either of them. R. X, Attorney for Plaintiff, No. 53. Rejoinder to Replication. [Caption.'i Defendant, for rejoinder to said replication, says it did not waive the said condition as the plaintiff hath alleged. For further rejoinder defendant says it did not have knowl- edge of the existence of the Baloise policy as stated in the replication. R. Y., Attorney for Defendant. yd SUITS AT LAW. PROCESS, MOTIONS, JUDGMENT, BILLS OF EX- CEPTIONS, Etc. No. 54. Summons at Law. The United States of America, District of , ss. The President of the United States of America to the Mar- shal of the District of , Greeting : You are hereby commanded to summon CD., citizen of and resident in the state of , if he be found in your district, to be and appear in the district [or, circuit] court of the United States for the district of aforesaid, at , on the Tuesday in the month of , 1894, to answer unto A. B., citizen of and resident in the state of , in civil action for \as may be\ . And have you then and there this writ. \Add teste according to the court issuing the writ. See Nos. 55 and 56.] No. 55. Teste for Writs Issuing from a District Court (i). Witness the Honorable G. N., Jiidge of the district court of the United. States, this day of - \Seal^ 1894, and in the 11 8th year of the Independence of the United States of America. Attest : B. R., Clerk, (i) See R. S., Sec. 911; Desty's Fed. Proc, Sec 433, and cases there cited; Foster's Fed. Prac, Sees. 361 and 496, and cases cited in notes; also Gould and Tucker's Notes on the Revised Statutes, pages 283 and 287. PROCESS, MOTIONS, JUDGMENT, ETC. ^^ No. 56. Teste for Writs Issuing from the Supreme Court, a Circuit Court of Appeals, or a Circuit Court (i). Witness the Honorable Melville W. Fuller, Chief Jus- tice of the United States, this day of , \Seal.'\ 1894, and in the ii8th year of the Independence of the United States of America. Attest: B. R., Clerk, (i) See note to No. 55. No. 57. Return of Writ by Marshal (i). Received this writ on the - — — day of , 1894, and on the day of , 1894, I served the same by handing a true copy thereof, with the indorsement thereon, to said C. D. personally [or say, I left a like copy thereof, with the indorse- ment thereon, with an adult person, who is a member [or, -esident] in the family of C. D., at the usual place of residence of said CD.]. H. C, United States Marshal for the FEES. district of . Copy, Mileage, Service, $ (i) See 13th Rule in Equity. No. 58. Cost Bond (i). District \or, Circuit] Court of the United States, for the District of , ss. A. B., Plaintiff, "| No. . vs. > Cost Bond. C. D., Defendant, j I hereby acknowledge myself security for costs in the above entitled cause. E. F. \Seal^ 78 SUITS AT LAW. Taken and acknowledged before me this day of , 1894. B. R., iSeal.] Clerk of District [or, Circuit] Court of the United States, district of . I, E. F., a resident of said district, do solemnly swear, that after paying my just debts and liabilities I am worth dollars, in real estate within the jurisdiction of this court, and subject to execution, levy and sale. E. F. Sworn to and subscribed before me this day of 1894. B. R., [Seal.] Clerk of the District [or, Circuit] Court of the United States for the district of . (i) This form of bond was sustained in Fewlass vs. Keeshan, 88 Fed. Rep. 573, 32 C. C. A. 8. No. 59. Notice to Surety. The United States of America, District of , ss. A. B., Plaintiff, ^ In the District [or, Circuit] Court of the vs. > United States C. D., Defendant, j for the district of . To E. F., security for costs in the above entitled cause : This is to give you notice, that on , the day of 1894, at 10 o'clock in the morning, or as soon there- after as counsel can be heard, the said circuit court will be moved to enter up judgment in the name of said defendant, C. D., against you as security for costs in the above entitled cause for dollars and cents, the amount of costs adjudged against the said C. D. at the term of said court, 1894, and still remaining due and unpaid; also for the interest thereon, and the costs of increase that may be found due, including the costs of this proceeding. In witness whereof, I have hereunto set my hand and [5"^^!/.] affixed the seal of said court at this day of , 1894. B. R., Clerk. PROCESS, MOTIONS, JUDGMENT, ETC. 79 No. 60. Affidavit by Poor Person to Dispense with Security for Costs. ICaption.] State of , County of , ss. A. B., administrator, being duly sworn, deposes and says that he is a citizen of the United States of America; that he is the plaintiff in the above named action and is entitled to commence and maintain the same in said court. He further states the fact to be that because of the poverty of said estate and said widow and children (i) for whose benefit this action is brought, he is unable to pay the costs of said action or to give security for the same, and that he be- lieves he is entitled to the redress he seeks by such action, and that the nature of his cause of action is correctly and concisely set out in his petition filed in said case. He further states that this affidavit is made and filed for the purpose of availing himself of the rights and privileges in such case provided by the Act of Congress, (2) Chapter 209, approved July 20th, A. D. 1892. A. B. Subscribed by the said A. B. in my presence and by him sworn to before me, this day of , A. D. . B.C., [Seal.'] Notary Public. (i) The affidavit must show that all the beneficiaries and real parties in interest are unable to pay costs or furnish security. Reed vs. Penn- sylvania Co., Ill Fed. Rep. 714; Clay vs. Southern Ry. Co., 90 Fed Rep. 472, 33 C. C. A. 616 ; Boyle vs. R. R. Co., 63 Fed. Rep. 539. (2) Act of July 20th, 1892, 27 Stat, at L. 252. This Act does not apply to*proceedings in an appellate court, Callaway vs. Fort Worth Bank, 186 U. S. 177- 8o SUITS AT LAW. No. 61. Certificate of Counsel to Poverty Affidavit (i). [^Caption.] To the Honorable, the Judges of said Court: I am one of the attorneys of record of the plaintiff in the cause referred to in the foregoing affidavit. I further state that I have examined said plaintiff's case and believe that he has a just cause of action and that the same is substantially as stated in his petition, and. I verily believe that because of his poverty the plaintiff is unable to pay the costs of said action or to give security for the same. I further declare and stipulate that no agreement or under- standing has been entered into between said plaintiff and his attorney, or counsel for a division, or share of, or interest in, the judgment sought to be recovered, and that no assignment of such judgment shall be made prior to final disposition of this suit either in this court or in the higher courts; and I further stipulate that when judgment is finally obtained the money shall be paid into the registry of the court there to remain until disposed of by the court as follows, to wit : First. To the payment of the costs. Second. To the attorney's fees to be fixed by the court. Third. The remainder to the plaintifif. Respectfully, R. X., Attorney for Plaintiff. (i) A certificate of this character is not required by the statute per- mitting suits to be prosecuted by poor persons without giving security for costs, but is required by rule of court in some districts. No. 62. Order to Sue in Forma Pauperis. [Caption.] This cause coming on to be heard upon the motion of plain- tiff to be allowed to sue in forma pauperis, came the plaintiff PROCESS, MOTIONS, JUDGMENT, ETC. 8l and filed affidavit in accordance with the provisions of the Act of Congress of July i, 1892. Whereupon the court being advised, it is ordered that the plaintifif be allowed to prosecute this action in this court with- out making a deposit or executing bond for costs, because of her poverty as alleged in said affidavit, and it is ordered that all judicial officers who have occasion to perform services herein, shall perform same as if the deposit for costs or se- curity for costs had been given, and it is further ordered that if the plaintiff recover judgment herein all costs for services rendered by officers as aforesaid shall be paid and a lien upon any such judgment recovered will be given to secure the payment of all such costs and fees due and unpaid. No. 63. Motion for Service by Publication (i). [Caption.] Now comes A. B., and moves this honorable court for an order to proceed under Section 738 of the Revised Statutes of the United States to obtain service upon C. D. and G. H. by publication, on the ground that the marshal returned the subpoena issued in this cause, indorsed " The defendants, C. D. and G. H., are not found in my district," and that per- sonal service is not practicable, the absent defendants being inhabitants of the dominion of Canada [or as may be]. X. & X., Attorneys for Plaintiff. (i) As to when service by publication is allowed in federal courts, see Desty's Fed. Proc., Sec. 25, and R. S., Sec. 738; 18 Stat, at L. 470, I Supp. 84; Bracken vs. Union Pac. Ry. Co., 56 Fed. Rep. 447, S. C. 5 C. C. A. 548; Batt vs. Procter, 45 Fed Rep. 515; Beech vs. Mosgrove, 16 Fed. Rep. 305. 82 SUITS AT LAW. No. 64. Affidavit for^ Service by Publication of non-Resident De- fendants (i). [Caption.] In this cause J. B. makes oath in due form of law and states that he is one of the attorneys for plaintiff in the above- styled cause; that the Union Land Company and the New York Trust Company, defendants to this cause under the amended declaration, are not inhabitants of, nor found within the district of ; that neither of said defendants has voluntarily appeared to this action ; that the Union Land Com- pany has its principal ofifice and domicile in , in the state of , and the New York Trust Company has its principal office and domicile in the city of ,' state of , and that neither of said corporations has any office, agent or represen- tative within this district, to the best of affiant's knowledge and information and belief. J. B. Sworn to and subscribed before me this day of , A. D. . [Official signature.] (i) As to when service by publication can be made, see R. S., Sec. 738; 18 Stat, at L. 470, I Supp. 84; Bracken vs. Union Pac. Ry. Co., 56 Fed. Rep. 447, S. C. 5 C. C. A., 548 ; Batt vs. Procter, 45 Fed. Rep. 515 ; "Reach vs. Mosgrove, 16 Fed. Rep. 305. No. 65. Order for Service by Publication (i), [Capiwn.] Upon the motion of X. & X., counsel for A. B., and it ap- pearing to the court that the defendants, C. D. and G. H., are not inhabitants of, nor are found within, this district, nor have voluntarily entered their appearance herein, and that personal service upon the said defendants, C. D. and G. H., is not practicable, it is hereby ordered that said defendants, C D. and G. H., appear, plead, answer, ordemur to the said PROCESS, MOTIONS, JUDGMENT, ETC. 83 bill filed by the plaintifi" herein, by the day of , 1894, and in default thereof that the court will proceed to the hearing and adjudication of said suit; and that this order be published in a newspaper of general circulation, to wit, \name the paper], once a week for six consecutive weeks. (i) See Note to No. 64. No. 66. Notice for Publication. The Circuit Court of the United States for the District of . A. B. vs. C. D., E. F., and G. H. Whereas, proceed- ings have been instituted by the plaintiff to subject certain moneys and credits belonging to C. D„ in the possession and under the control of E. F., to the payment of a judgment against said C. D., as set forth in the bill filed in the above cause ; and in pursuance of an order of said court granted in the above-entitled cause, notice is hereby given to C. D. and G. H., defendants, who are not inhabitants of nor are found within this district, that they appear, plead, answer, or demur to the bill of complaint filed by the plaintiff herein, by the day of , 1894, and that in default thereof, the court will proceed to the hearing and adjudication of said suit. X. & X., A. B., Solicitors for Plaintiff. Plaintiff. No. 67. Proof of Publication. State of County of , ss. S. C, being first duly sworn, upon his oath says, that he is publisher of the Crossville Chronicle, a weekly newspaper published in the county and state aforesaid ; that the annexed 84 SUITS AT LAW. and foreg-oing advertisement was published in said news- paper for four (4) consecutive weeks ; and that the first pub- lication of said advertisement was made in the issue of said newspaper on the day of . S. C. Sworn to and subscribed before me this day of — T. N., Notary Public in and for County. No. 68. Order for Service on non-Resident Defendants. [Caption.] Upon motion of plaintiff's attorney, it appearing to the court that this is a suit to enforce a claim to real property within this district, and that defendants, Union Land Com- pany, and New York Trust Company, are not* inhabitants of or found within this district, and that they have not volun- tarily appeared to this action ; it is ordered that said defend- ants appear, plead, answer or demur to plaintiff's declaration by the day of , and in default thei-eof the court will proceed to the hearing and adjudication of said suit, and that a copy of this order be served on said defendants wher- ever found. No. 69. Certified Copy of Order for Service on non-Resident Defend- ant, and the Return of Officer Serving Same (i). [Caption.l Upon motion 01 plaintiff's attorney, it appearing to the court that this is a suit to enforce a claim to real property within this district, and that defendants, Union Land Com- pany, and New York Trust Company, are not inhabitants of or found within this district, and that they have not volun- PROCESS, MOTIONS, JUDGMENT, ETC. 85 tarily appeared to this action; it is ordered that said defend- ants appear, plead, answer or demur to plaintiff's declaration by the day of , and in default thereof the court will proceed to the hearing and adjudication of said suit, and that a copy of this order be served on said defendants wher- ever found. United States of America, District of — ' — , ss. I, T. J., clerk of the circuit court of the United States for the district aforesaid, do hereby certify the above and fore- going to be a full, true and correct copy of an order made and entered of record in the above styled case on the day of . In testimony whereof, I have hereunto set my hand and affixed the seal of said court at office in the city of , this day of . [Court Seal.'] T. J., Clerk. [Officer's Return.] United States of America, District of , ss. J. H., being duly sworn, . on his oath says that he is a field deputy marshal of the United States for the district of , that he did on the day of instant serve a copy of the order made and entered in the within cause on the day of , on the Union Land Company by giving the same to Edwin G. Maturin, the secretary of said company at its office in in said district. J. H., Deputy U. S. Marshal. (i) This order is served by the marshal for the district within which the non-resident defendant resides and not by the marshal for the dis- trict within which the suit is brought. 86 SUITS AT LAW. No. 70. Appearance. [Caption. J To the Clerk of said Court: Please enter my appearance as attorney for the defendant in the above entitled cause. R. Y., Dated . Attorney for Defendant. No. 71. Appearance for Special Pleading. [Caption.l Now comes the defendant by his counsel and enters his ap- pearance herein for the purpose of pleading to the jurisdic- tion of this court [or as may be} and for no other purpose. Y. & Y., Dated . Attorneys for Defendant. No. 72. Appearance by Defendant in Person (i). I promise to appear at the return of the within writ, and pray the court to enter my appearance accordingly. C. D., Dated . Defendant. (l) This appearance is usually indorsed on the writ. No. 73. Order -Substituting Attorneys (i). [Caption.] It appearing to the court that Y. & Y. have ceased to be attorneys for the defendant in this cause, and that Messrs. Z. & Z. have been retained for and on behalf of said defend- ants. It is ordered that the said Z. & Z. be and they hereby are substituted on the record as attorneys for said defendant. (i) As to the right of attorneys to withdraw appearance without leave of court, see U. S. vs. Curry, 6 How. ia6, iii ; Creighton vs. Kerr, 20 Wall. 8, 13; Rio Grange Irrigation Co. vs. Gildersleeve, 174 U. S. 603, 606. PROCESS, MOTIONS, JUDGMENT, ETC. 87 No. 74. Motion by Receivers to Quash Service of Summons [Caption.] Now come the defendants herein, K. C. and G. M., named in the petition in this case as receivers of the C. & D. Railroad Company, and entering a special appearance for the purpose of this motion and for no other purpose whatever, they here show to the court that they were discharged as such receivers on the day of , and that since that time they have not been in the possession of any property of the C. & D. Railroad Company as such receivers, and have not since that date had any agent in the state of : ; and they, therefore, show that F. S., upon whom this writ was served, was not at the time of such service and has not been since that date, their agent for any purpose whatever, and they, therefore move to quash the summons issued in this case and the service thereof, for said reason and for the further reason that no sufficient service of said summons was made upon these de- fendants. R. X., Attorney for Receivers. This motion was sustained in B. & O. R. Co. vs. Freeman, 112 Fe4 Rep. 237. No. 75. Notice to Plead. [Caption.] Y. & Y., Attorneys for Defendant. Please take notice that a rule has been entered in this cause with the clerk of this court, at his ofifice in the city of , requiring the defendant to plead to the petition [or, declara- tion, etc.] filed in this cause within twenty days after service 88 SUITS AT LAW, of a copy thereof, with which you are hereby served, and notice of rule or judgment. X. & X., Dated at . Attorneys for Plaintiff. Service accepted this day of , 1894. Y. & Y., Attorneys for Defendant. No. 76. Notice to Declare. [^Caption.2 X. & X., Attorneys for Plaintiff. Please take notice that the plaintiff in this cause is hereby required to declare within days after the service of this notice, or that judgment of discontinuance will be entered against him. Y^ &*Y., Dated . Attorneys for Defendant. Service accepted, etc. [as in No. 75. J No. 77. Notice of Motion for Leave to Amend. {^Caption.] Y. & Y., Attorneys for Defendant {or. Plaintiff]. Please take notice that we shall make a motion before the judge of the district [or, circuit], court of the United States for the district of , on the day of , 1894, at ten o'clock in the forenoon, or as soon thereafter as counsel can be heard, that the plaintiff [or, defendant] in this cause have leave to amend the declaration {or, answer, or, etc.] filed herein, on such terms as the said court may direct; a copy of which amendment and affidavits in support thereof, which PROCESS, MOTIONS, JUDGMENT, ETC. 89 -will be presented to the court at such hearing, are herewith served upon you. X. & X., Attorneys for Plaintiff \_or, Defendant], Dated . Service accepted, etc. [as in No. 75.] No. 78. Demand of Oyer. ^Caption.] T. & Y., Attorneys for Defendant [or. Plaintiff]. The plaintiff [or, defendant] demands oyer and copy of •contract mentioned in defendant's answer in this cause [or specify the document desired,. and the pleading in which it is mentioned~\. X. & X., Attorneys for Plaintiff [or. Defendant]. Dated . Service accepted, etc. [ay in No. 75.] No. 79. Notice to Reply. [Caption.l X. & X., Attorneys for Plaintiff. Please take notice that the plaintiff in this cause is hereby required to reply to the plea [or, pleas] filed herein, with a copy of which you are hereby served, within days after service of a copy thereof, and of this notice, or judgment will be entered against him. X. & X., Attorneys for Defendant. Dated . Service accepted, etc. [as in No. 75.] go SUITS AT LAW. No. 80. Notice of Trial. [Caption.'] Y. & Y., Attorneys for Defendant [or, Plaintiff]. Please take notice that the above cause will be brought to trial at the next term of the district [or, circuit] court of the United States for the district of , to be held at the United States court-rooms in the city of , before the judge of the said court on the day of , at tep o'clock in the forenoon of that day. X. & X., Attorneys for Plaintiff [or, Defendant]. Dated . Service accepted, etc. [as in No. 75.] No. 81. Subpoena of Witness to Testify before a Commissioner. See form under title " Criminal Proceedings." No. 82. Habeas Corpus ad Testificandum. For form of Affidavit and Writ see forms under title Criminal Proceedings." No. 83. Motion to Make Petition Definite and Certain. Said defendant, the C. D. Railroad Company, moves the court for its order requiring said plaintiff to make his petition more definite and certain in the following particulars, to wit : First. That he be required to definitely state and specifical- ly set forth what, if any, injury other than the loss of his right arm, he sustained by reason of the accident in his petition alleged. PROCESS, MOTIONS, JUDGMENT, ETC. QI Second. That he be required to definitely state and specif- ically set forth what said plaintiff means by, and to what in- juries is referred in the allegation contained in the next to the last paragraph of said petition, to wit: "That the plaintiff was at the same time otherwise severely cut, bruised and in- jured." The C. & D. Railroad Company. . By R. Y., its Attorney. No. 84. Order Granting Motion to Make Petition more Definite and Certain. [^Caption.] This day came the parties, and the court being fully ad- vised herein, sustains the motion of the defendant to make the petition definite and certain. And on motion of the de- fendant it is further ordered that the plaintiff have two weeks in which to file his amended petition herein. No. 85. Order Allowing Amendment to Count in Declaration. [^Caption.'\ In this cause came the plaintiff, by attorney, and it ap- pearing upon motion to the court for satisfactory reasons that leave to amend the third count of plaintiff's declaration filed in the above entitled cause should be granted, the demurrer of the Northern Railway Company thereto, having been hereto- fore sustained. It is therefore ordered by the court that leave be granted the plaintiff to file an amended count in lieu of said third count to which the demurrer of said defendant was sustained. Said amended count having remedied de- fects in the said third count of plaintiff's declaration shall stand in lieu of said third eount. 92 SUITS AT LAW. No. 86. Order Granting Leave to Plead. [Caption.] In this cause leave is granted to the defendant to plead in fifteen days from this date. No. 87. Affidavit to Withdraw a Plea in Bar. State of , County of , ss. Personally appeared before me R. A., clerk of the circuit court of county, the within named affiant, J. B., who makes oath in due form of law that he is the attorney for the Northern Railway Company, and as grounds for asking to withdraw the plea in bar heretofore filed in this cause says that since the filing of said plea in bar the defendant, North- ern Railway Company has come into the possession of facts which it heretofore had not the means of knowing and which will operate to its prejudice if not allowed to file another form of plea embracing these facts. G. P., Attorney N. R. R. Sworn to and subscribed before me this day of . R. A., Clerk of the Circuit Court for the District of . No. 88. Motion to Strike out Pleas. [^Caption.] First. Plaintiff by counsel moves to strike out defendant's second plea and for cause thereof says: Said plea presents no valid defense to the action brought and the same is there- fore irrelevant and immaterial and if the facts pleaded in said plea were true it would not defeat plaintiff's action. PROCESS, MOTIONS, JUDGMENT, ETC. 93 Second. Plaintiff by counsel moves to strike out defend- ant's third plea and for cause thereof says : Said plea presents no valid defense to the action brought and the same is there- fore irrelevant and immaterial and if the facts pleaded in said plea v^rere true it would not defeat plaintiff's action. Third. Plaintiff by counsel moves to strike out defendant's fourth plea and for cause thereof says : Said plea presents no valid defense to the action brought and is therefore ir- relevant and immaterial and if the facts pleaded in said plea were true it would not defeat plaintiff's action. X. & X., Attorneys for Plaintiffs. No. 89. Order Allowing Amendment to Plea. [Caption.l The defendant this day moved the court for leave to file an amended plea, setting up as a defense that the policy sued on is void by reason of the procurement of additional insurance from the B. D. Fire Insurance Company, the 'plea being presented in open court. Upon consideration thereof it is ordered that the motion Ibe allowed and the amendment be filed, and thereupon it was filed. No. 90. Order Allowing Amendment (Plea of Statute of Limitations) and Striking Same from Files. \^Caption.'\ Defendant, by leave of the court first had and obtained, filed a further plea that the suit of plaintiff as such, adminis- trator with the will annexed was barred by the terms of the policy, which plea plaintiff moved to strike out, which motion the court was pleased to allow and said plea was accordingly struck out as being insufificient in law, to which action of the court the defendant then and there excepted. 94 SUITS AT LAW. No. 91. W^rit of Venire for Jury. The United States of America, District of , ss. The President of the United States of America to the Marshal of the district of , Greeting: We command you to summon, -without delay, \here state the names and addresses of all the jurors^ to be and appear before our district [or, circuit] court of the United States, within and for the district aforesaid, at the court-rooms in the city of , on , the day of , 1894, at 10 o'clock a. m., then and there to serve as petit [or, grand] jurors for and during the term, 1894, of said court, and not depart the court without the leave thereof. Hereof fail not, and have then and there this writ, with your proceedings thereon. \Add teste according to the court issidng the writ. See Nos. 55 and 56.] No. 92. Order Impanelling Jury and Trial Begun. {^Caption.l This day came the parties herein, by their attorneys ; also came the following named persons as jurors, to wit : [naming themi , who were duly impaneled and sworn according to law ; and thereupon the case came on for hearing on the pleadings and evidence. And said jury having heard the testimony ad- duced in part, and the hour of adjournment having arrived, the further hearing of said cause was postponed until to- morrow morning at 9:30 o'clock. No. 93. Order Discharging Jury until Future Day. [Caption.'\ This day again came the said parties, by their attorneys, and also came the jury heretofore impaneled and sworn, and the PROCESS, MOTIONS, JUDGMENT, ETC. 95 trial proceeded. And the said jury having heard the remain- ing testimony, the argument and charge of the court, retired to their room in charge of a sworn officer, for deliberation. And said jury not having agreed upon a verdict, and the hour of adjournment having arrived, the court discharged said jury until tomorrow morning at 9:30 o'clock. No. 94. Order for Trial by Eleven Jurors. [^C option.] This cause coming on for trial, and the jury herein haying been duly impaneled and sworn, one of the jurors herein, to wit : John B. Batlin, being taken ill, and declaring himself unable to proceed with the hearing of said case, came the par- ties plaintiff and defendant, by their respective attorneys, and consented that said juror might be excused. Whereupon the court being advised, orders that said juror be excused from further services herein. Came again the parties plain- tiff and defendant, by their respective attorneys as aforesaid, and now consent to a trial of this case with eleven jurors as a full panel. No. 95. Stipulation Waiving Jury (i). [Caption.] We, the attorneys for the respective parties, hereby waive the trial to the jury of this cause, and agree to submit the same to the court, without the intervention of a jury. R. X., Attorney for Plaintiff. R. Y., Attorney for Defendant, (i) This stipulation should be in writing and filed in clerk's office. R. S., Sec. 649 ; Citizens' Bank vs. Farwell, 56^ Fed. Rep. 570 ; 6 C. C. A., 24; Supervisors vs. Kennicott, 103 U. S. 554-556. 96 SUITS AT LAW. A stipulation waiving jury does not operate as a waiver in a subse- quent trial after judgment has been reversed and new trial awarded. Burnham vs. North Chicago Ry. Co., 88 Fed. Rep., 627 ; 32 C. C. A., 64. No. 96. Oath of Jury on Voir Dire. You and each of you do solemnly swear [or, affirm] that you shall full, true and perfect answers give to such questions as shall be put to you touching your competency to sit as jurors in this case. No. 97. Oath of Witness. You solemnly swear that your testimony in this cause shall be the truth, the whole truth and nothing but the truth as you shall answer unto God. No. 98. Affirmation of Witness. You do solemnly declare and affirm that your testiinony in this cause shall be the truth, the whole truth and nothing but the truth and this you do under the pains and penalties of perjury. No. 99. Motion to Dissolve Attachment and Vacate Bond. \_Caption.] Now comes the said defendant, C. D., and moves the court to dissolve the attachment hereinbefore issued in this cause and to vacate and hold for naught the bond given to release the property held under said attachment, and to restore the said defendant to all things it may have lost by reason of said attachment, because: PROCESS, MOTIONS, JUDGMENT, ETC. 97 First. Said defendant was not at the time said attachment was issued, subject to attachment under the laws of the state of . Second. The said plaintiff had no authority in law to have said attachment issued. Third. Said attachment was illegal, and therefore void. R. Y., Attorney for the Defendant. No 100. Motion to Transfer Suit from One Division to Another Di- vision of the Same District (i). In the United States Circuit Court of the District of , Eastern Division. A. B., Plaintiff, vs. Motion. Defendants. Now comes the plaintiff herein, and moves the court for an order transferring this case for trial to the Circuit Court of the United States for the district of , and the western division thereof, for the reason that said case was improperly removed to said court of the eastern division of said district of . Plaintiff says that the eastern division of the district of is not the proper court in which to try said case for the following reasons, to wit : First. That said cause was originally brought in the com- mon pleas court of county, , which county is sit- uated within the western division of the said district of . Second. That the receivers ot said railroad company, the defendants herein, maintain and operate the principal and general offices of said railroad in , — county, , being in the western division of the district of . 98 SUITS AT LAW. Third. That the plaintiff herein is a resident of , county, — '■ — , in the division of said district of , and was appointed administratrix by the probate court of said county of and state of . Fourth. That the occurrences complained of in plaintiff's petition filed in said case, all happened and occurred in the said city of , county, , and that all the wit- nesses for plaintiff and defendant reside in said city of , in the western division of the district of . A. B., By X. & X., Her Attorneys. State of , County of , ss. W. F., being first duly sworn, says that he is one of the attorneys for the plaintiff in the above entitled action, that said plaintiff is at the present time absent from said county, and for that reason affiant makes oath and says that the al- legations and statements contained in the foregoing motion are true as he verily believes. . W. F. Sworn to before me and signed in my presence, this day of , A. D. . \_Seal.'] J. N., Notary Public in and for County, (i) See Barrett vs. U. S., i6g U. S., 231 ; Rosecrans vs. U. S., 165 U. S. No. 101. Order Transferring Suit to Another Division in the Same District (i). [Caption.] This cause coming on to be heard upon the motion of the plaintiff herein for an order transferring and removing this cause for trial to the western division of the circuit court of the United States, for the district of , and all par- ties consenting thereto, the court finds that said motion should PROCESS, MOTIONS, JUDGMENT, ETC. 99 be granted, and that this action should have been removed to said circuit court within and for the western division of the district of . It is therefore ordered, adjudged and decreed by the court that this action be, and the same is hereby transferred for further proceedings and trial to the Circuit Court of the United States for the western division of the district of , and that the same stand for trial in said court at the next term thereof, and the clerk of this court is hereby .ordered and directed to transfer all papers and records filed herein to the said Circuit Court of the United States, for the western division •of the district of . (i) See Barrett vs. U. S., 169 U. S., 231. No. 102. Verdict Directed by the Court. \^Caption.'\ This cause coming duly on for trial the following jury was called and sworn, to wit, [naming them]. And thereupon the jurors of the jury aforesaid sat in the jury seats and heard the evidence in this cause; and thereupon, by direction of the court, without leaving their seats, say upon their oath that the said defendant did not undertake and promise in manner and form as the said plaintiff hath in his declaration in this cause complained against him. No. 103. [Caption.] Verdict for the Plaintiff. We, the jury, find in favor of the plaintiff and against the defendant in the sum of $ and interest on the same from the day of and for costs herein expended. S, T., Foreman. lOO SUITS AT LAW. No. 104. Verdict for the Plaintiff against Two or More Defendants Jointly (i). ^Caption.] We, the jury, find in favor of the plaintiff and against both the defendants jointly in the sum of $ with interest there- on from the day of and for costs herein expended. G. R., Foreman. (i) Where the action is joint the verdict must be joint. Washingfton Gas Light Co. vs. Lansden, 172 U. S., 534, 556; Albright vs. McTighe, 49 Ped. Rep., 817. No. 105. Verdict for the Defendant. [Caption.] We, the jury, find in favor of the defendant and against the plaintiff. G. R., Foreman. No. 106. Order Overruling Demurrer to Petition and Permitting Amendment. [Caption.] The demurrer of the defendant to the petition herein hav- ing been heretofore argued and submitted and due considera- tion having been given the same considered that said petition is good and sufficient in law, and that said demurrer be and the same hereby is overruled with dollars costs ; further that said defendant have days in which to file and serve answer to said petition. No. 107. Order Sustaining Demurrer to Declaration and Allowing Amendment. [Caption.] In this cause came the parties, by their attorneys, and came on to be heard the demurrer of the defendant, Northern Rail- PROCESS, MOTIONS, JUDGMENT, ETC. Id road Company to the plaintiff's declaration and the same having been argued by counsel, considered of and well under- stood by the court, the court is pleased to sustain the following grounds in said demurrer, to wit : Nos. i and 2 to the effect that plaintiff shows no right to recover, and No. 7, because • the third count is against the Northern Railroad Company alone, the court being of opinion that this makes a misjoinder of counts ; and No. 8, because the latent defects of the engine are not alleged with reasonable certainty, and the court is pleased to overrule' all other grounds in said demurrer. Thereupon on motion of plaintiff's attorney for leave to amend, and it appearing that it is necessary for the satis- factory adjustment of the rights of all parties, it is accordingly ordered and decreed by the court that leave be granted, and the same is granted plaintiff to amend his declaration filed in the above entitled cause, by showing in each count that this suit is for the benefit of the next of kin, and also by setting out the next of kin to plaintiff's intestate as follows : Mrs. Virgie Mozely, Mrs. Lilly Jerrard, Minnie Buice, Mamie Buice and Allie Buice, sisters of the deceased. No. 108. Judgment for Plaintiff. \^C Option.] Came again the said plaintiff, with his attorneys, and the said defendant, by its attorneys, and came again also the jury heretofore empaneled and sworn herein, when the trial of this case was again resumed and the jury having heard the testi- mony, listened to the arguments of counsel and received the charge of the court upon their oaths do say they find the is- sues herein joined to be in favor of the said plaintiff and against the said defendant, and that they assess the amount of the plaintiff's damage and recovery herein against the de- fendant at the sum of thousand dollars. I02 SUITS AT LAW, On motion of the plaintiff it is therefore hereby considered by the court that said plaintiff, A. B., do have and recover of and from said defendant, The L. Railroad Company, said sum of thousand dollars and the costs of this suit for the collection of which said sum and costs, execution is hereby awarded. No. 109. Judgment for Defendant. [^Caption.] The jury by whom the issue joined in this cause was tried having rendered a verdict in favor of the said defendant and against the said plaintiff; therefore, it is considered that the said plaintiff take nothing by his suit, and that the said de- fendant do go thereof without day. And it is further con- sidered that the said defendant do recover against the said plaintiff his costs and charges by him about his defense in this behalf expended, to be taxed ; and that the said defendant have execution thereof. No. 110. Order Sustaining Demurrer and Judgment for Defendant. [Caption.] This cause being heard this day upon the demurrer of the defendant to the petition of the plaintiff and was argued by counsel and the court being fully advised in the premises, is of the opinion and do therefore order that said demurrer be, and the same is hereby sustained, to which ruling of the court said plaintiff, by its counsel, excepts. And thereupon the plaintiff not asking to plead further, it is considered by the court that the defendant go hence without day and recover from the plaintiff its costs herein ex- pended. PROCESS, MOTIONS, JUDGMENT, ETC. IO3 No. 111. Judgment for Plaintiff upon Sustaining Demurrer to Answer (i). This day this cause came on to be heard upon the demurrer of the plaintiff to the answer of the defendant, and was argued by counsel, and the court being fully advised in the premises, is of the opinion and does hereby order that said demurrer be, and the same hereby is, sustained, to which rul- ing of the court said defendant, by its counsel, excepts. And thereupon said defendants, not asking to plead further, it is considered and adjudged by the court that the-fiaid plain- tiff, The A. B. Banking Company, recover against the said defendant. The City of , said sum of dollars and cents, the amount claimed in the petition, with interest computed up to , the first day of the present term of this court, together with its costs herein expended taxed at $ , and that said defendant pay its own costs. (i) It is not necessary or proper to except to judgment. No. 112. Judgment for Plaintiff upon Remitting Part of Verdict. [Caption.'] This cause having come on to be heard before the Hon. C. D., District Judge, upon the motion for a new trial heretofore made, and the briefs of attorneys for both sides relative there- to, and after due consideration thereof the court is pleased to overrule the said motion for a new trial upon all the grounds therein contained, except that of excessive verdict, and upon this ground, upon plaintiff's entering a remittitur of dollars, making the judgment of the court stand at dollars, the court is pleased to overrule the motion for a new trial upon that ground also. Thereupon came the attorneys for plaintiff and enter a remittitur of dollars as hereinbefore suggested. I04 SUITS AT LAW. It is therefore considered by the court that defendant's mo- tion for a new trial herein be overruled and for nothing held, and that the plaintiff recover of the defendant the sum of dollars and the costs of this cause, for which let execu- tion issue. No. 113. Judgment for Plaintiff, Overruling Motion for New Trial and Settling Bill of Exceptions. ICaptiofi.] This day this cause was heard upon the motion of the said defendant, for an order setting aside the verdict heretofore rendered herein and for a new trial hereof, and was argued by counsel. On consideration whereof, the court being fully advised in the premises, doth find that said motion is not well taken and should be overruled, and that a judgment should be ren- dered upon said verdict. It is therefore ordered and adjudged by the court that the motion of said defendant for a new trial be, and the same hereby is, overruled, and that the said plaintiff, A. B., recover of said defendant. The C. & D. Railroad Company, the sum of dollars, together with his costs herein expended, taxed at $ . And thereupon came the said defendant, and presented to the court its bill of exceptions herein, which having been ex- amined by the court and found in all respects to be true, and correct, is hereby approved, allowed, signed and when filed, is ordered to be made a part of the record hereof. PROCESS, MOTIONS, JUDGMENT, ETC. IO5 No. 114. Verdict and Judgment in Ejectment. ICaption.] Comes again the jury heretofore empaneled, and after hear- ing all the evidence, the arguments of the counsel of the re- spective parties, and the charge of the court, returns into court the following verdict: That they find that the plaintiffs are the owners in fee and entitled to and in possession of the following lands situated in county, , to wit: [Description of land.] As to the other land herein sued for, not embraced in the above descriptions, the jury finds the plaintiffs are not entitled to the same. It is therefore considered, ordered and adjudged, that the plaintiffs do have and recover of and from the defendants sev- erally the lands hereinbefore described, found by the verdict of the jury to belong to them in fee, and that the plaintiffs do have and retain the possession of such lands under and in accordance with their said title ; and that as to the lands herein sued for, not embraced by the verdict of the jury in favor of the plaintiffs, the defendants go hence without day; and that the plaintiffs recover of the defendants all their costs herein expended, and that execution issue therefor. No costs are adjudged against the defendants, E. F. and G. H., as they have not set up any claim to the lands recovered by the plain- tiffs, and the plaintiffs will pay the costs as to them, for which execution may issue. No. 115. [Caption.'] Motion for a New Trial. The defendant moves that the verdict herein rendered be vacated and a new trial awarded for the following reasons : First. Said verdict was not sustained by sufficient evidence. I06 SUITS AT LAW. Second. There was no testimony tending to sustain the ver- dict. Third. Said verdict was contrary to law. Fourth. The court erred in refusing to instruct the jury to render a verdict for the defendant. Fifth. The court erred in refusing each of defendant's spe- cial charges, numbered respectively i, 2, 3 and 4. Sixth. The court erred in certain particulars of its general charge, excepted to by the defendant at the time. Seventh. There were other errors of law appearing upon the trial, prejudicial to the defendant. R. X., Attorney for Defendant. No. 116. Motion for New Trial by Defendant (i). {^Caption.} Now comes defendant and moves the court to set aside the verdict of the jury and to grant it a new trial herein for the following reasons : First. Court erred in overruling defendant's motion to instruct the jury to find for defendant made at the close of all the testimony. Second. Court erred in so much of its general charge to the jury as left to it to determine whether or not plaintifif was a passenger at the time of the injury, as charged, and that the duty of defendant towards plaintiff was that due a passenger, and that the care and caution to be exercised by her was that of a passenger, if they believed she was such, and each and every portion of the charge that grew out of leaving that question to the jury. PROCESS, MOTIONS, JUDGMENT, ETC. IO7 Third. The verdict of the jury is contrary to law and against the weight of evidence. Fourth. The verdict is excessive. R. Y., Attorney for Defendant. (l) The defendant waives his exception to motion to instruct for defendant at close of plaintiff's evidence by putting in his case. Colum- tia, etc., R. Co. vs. Hawthorne, 144 U. S. 202. No. 117. Motion for New Trial Where Court Instructed Jury to Find for Defendant. l_Caption.] And now comes the said plaintifif, by R. S., his attorney, and moves the court now here to set aside the verdict and judgment in said cause and grant a new trial therein for the reason that: The court erred in instructing the jury that the plaintiff can not recover under the proofs in this cause and directing a verdict for the defendant. This motion is based on the records and files in said cause and the testimony taken on the trial thereof. R. X., Attorney for Plaintiff. No. 118. Order Setting Aside Order Sustaining Motion for New Trial. [Caption.] The order of the court heretofore made granting the motion for a new trial is now set aside for the reason that counsel for the plaintiff misunderstanding the order of the court as to the time for hearing the motion for a new trial were not present. Leave is given to counsel for both sides to submit briefs within ten days from this order. Briefs of counsel shall be served upon opposing counsel. I08 SUITS AT LAW. No. 119. Order Sustaining Motion for New Trial and Ordering a New Trial. [Caption.] This cause being heard on the motion of the defendant to set aside the verdict of the jury heretofore rendered herein and for a new trial, for reasons set forth in said motion, which was argued by counsel and the court being fully advised in the premises is of the opinion and does hereby sustain said motion. The verdict is accordingly vacated and a new trial granted. No. 120. Order Overruling Motion for New Trial and Judgment for Defendant upon the Verdict. [Caption.] This cause again came on to be heard upon the motion of the plaintiff for a new trial of this cause, for reasons set forth in said motion, and was argued by counsel and the court being fully advised in the premises do overrule said motion, to which ruling of the court, said plaintiff, by his attorneys, excepts. It is thereupon considered and adjudged by the court that said defendant go hence without day and recover of the said plaintiff its costs herein expended, taxed at $ and that said plaintiff pay his own costs, to which judgment of the court, said plaintiff, by his attorneys, excepts. And for good cause shown, leave is given the plaintiff to prepare and have allowed and signed his bill of exceptions in sixty days from this date. PROCESS, MOTIONS, JUDGMENT, ETC. IO9 No. 121. Entry on Motion for New Trial (i). ICaption.] This day came the parties, and this cause came on to be heard upon the motion of the defendants to set aside the ver- dict heretofore rendered herein, and for a new trial, and the same was ^gued by counsel; and the court, being fully ad- vised in the premises, is of the opinion that as to the defend- ants, S. M. and G. H., as receivers of The C. & D. Railway Company, the same should be, and is hereby, overruled; and the court, on motion of said defendants' counsel, fixed the time in which said defendants may prepare and file their bill of exceptions on or before fifty (50) days from this date. And as to the defendant, The S. R. Belt Rail- way Company, the court is of the opinion that said verdict is contrary to law and the evidence, and said motion for a new trial as to said defendant is therefore allowed, and said verdict set aside and the judgment heretofore entered in this case on said verdict against said The S. R. Belt Railway Company is hereby vacated, and said defendant dismissed. (l) Taken from Herrick et al. Receiver vs. Kerr. (Not reported.) No. 122. Writ of Replevin. The United States of America, District of , ss. The Circuit Court of the United States. A. B., Plaintifif, V. C. D., Defendant. The President of the United States of America to the Marshal of the district of , Greeting : At Law. No. no SUITS AT LAW. You are commanded to take [here describe the property to be taken\ from the possession of the defendant, C. D., and deliver the same to the plaintiff, A. B., upon A. B. giving the undertaking required by law. You will make due return of this order on or before the Tuesday of , 1894. \Add teste according to the court issuing the writ. See Nos. 55 and 56.] No. 123. Return of Marshal on above Writ of Replevin, , 1894. I have this day executed the foregoing order of delivery, by taking the property therein mentioned ; ascer- taining by the oaths of E. F. and G. H., two responsible per- sons, the value thereof, which is dollars ; delivering the same to plaintiff, A. B. having executed to the defendant a written undertaking in the sum of $ , with S. L. and A. marshal's fees. l. as sureties ; and by serving a Service ...... '. '. '. copy of this order on C. D., said Mileage defendant. Inventory [See schedule and undertaking Writing ap. report . . . hereto attached^ Sum. and swear, ap . . . TT P Removing property ... ' ' Caring for property . . . United States Marshal for the Appraisers' fees district of . No. 124. Replevin Bond. Know all men by these presents, that we, the A. B. Com- pany, a corporation organized under the laws of the state of , and doing business in the county of , as principal and S. R. and W. B. as sureties, both of the city of , are held and firmly bound unto R. P., United States marshal, for PROCESS, MOTIONS, JUDGMENT, ETC. HI the district of , in the sum of dollars, lawful money to be paid to the said marshal, or his assigns, for which 'payment well and truly to be made we bind ourselves, our and each of our heirs, executors and administrators jointly and severally, firmly by these presents. Sealed with our seals. Dated the day of , A. D. . The condition of this obligation is such that if the above bounden, the A. B. Company, shall prosecute to effect a cer- tain suit in replevin which it has commenced in the Circuit Court of the United States for the district of , division, against C. D. and the E. F. Company, defendants, for taking and unjustly detaining the following described goods and chattels, to wit: [^Here specify property.] And if the said defendants shall recover judgment against it in the said action, then if the said A. B. Company shall re- turn the same property, if return thereof be adjudged, and shall pay to the defendants all such sums of money as may be recovered by the said defendants against it in the said ac- tion, then the above obligation to be void, otherwise to remain in full force and virtue. A. B. Company, [Seal.'] By K. S. Prest. [Seal.l S. R. {Seal.'] W. B. ISeal.] State of , County of , ss. S. R. and W. B., the sureties in the foregoing bond, being duly sworn, each for himself, says that he is worth the penal sum in said bond named, over and above all debts, liabilities and exemption. S. R., W. B. Subscribed and sworn to before me this day of , A. D. . F. D., Notary Public, [Seal.] In and for County. 112 SUITS AT LAW. No. 125. Oath of Appraisers of Goods Taken on Writ of Replevin. \_Caption.] You do solemnly swear that you will, according to your best judgment make a true appraisement of the goods and chattels taken by me and now in my custody, by virtue of a writ of replevin now in my hands, issued out of the Circuit Court of the United States for the . district of , at the suit of the A. B. Company as plaintiff, against C. D. ; so help you God. A. F. C. H. Subscribed and sworn to before me this day of , A. D. -. A. A. J., Deputy United States Marshal. No. 126. Report of Appraisers. [Caption.'} We, the undersigned, disinterested persons, residing in the county of and state of , having first been duly sworn by the deputy United States marshal for the district of , do make a true appraisement of all the goods and chat- tels above described and so replevied as follows, to wit: [Here specify property appraised"], at the sum of dollars ($——). Dated, , A. D. . A. F., C. H. Appraisers. PROCESS, MOTIONS, JUDGMENT, ETC. II3 No. 127. Fieri Facias, The United States of America, District of , ss. The President of the United States of America to the Marshal of the District of , Greeting: You are hereby commanded, that of the goods and chattels, and for want thereof, then of the lands and tenements of C. D. in your district, you cause to be made the sum of dollars damages, and dollars costs of suit, which, by the judgment of the district [or, circuit] court of the United States for the district of , at the term thereof, in the year 1894, A. B. recovered against the said C. D., with inter- est thereon from the day of , 1894, until paid, to- gether with the further sum of dollars, costs of increase on said judgment ; and also the costs that may accrue on this writ. And have you the said moneys in the said district [or, cir- cuit] court, before the judges thereof, at the city of , in said district, within sixty days from the date of this writ, to be paid to the persons entitled to receive the same. And have you then and there this writ. [Add teste according to court issuing the writ. See Nos. 55 and 56.] No. 128. Vendi Exponas. The United States of America, District of , ss. The President of the United States of America to the Marshal of the district of , Greeting: You are hereby commanded to expose to sale the following described property, viz.: [Set forth the description^,, 114 SUITS AT LAW. which, according to command, you have levied on, and which remains in your hands unsold, as you have certified to the judges of the district [or, circuit] court of the United States ■ for the district of aforesaid, to satisfy a judgment of said court, rendered at the term thereof, in the year , in favor of A. B. against C. D. for the sum of dollars, and dollars costs of suit, with interest thereon from the day of , 1894, until paid, together with the further sum of dollars, costs of increase on said judgment ; and also the costs that may accrue on this writ. And if, in your opinion, the property remaining in your hands, not sold, will be insufficient to satisfy the judg- meiit aforesaid, then you are hereby commanded that you levy the same upon other goods and chattels, lands and ten- ements, or either, as the law shall permit, being the property of the judgment debtor; which, together with the property on hand not sold as aforesaid, will be sufficient to satisfy the judgment aforesaid. And have you the said moneys in the said district [or, circuit] court, before the judges thereof, at the city of , in said district, on the third Tuesday in the month of next, to be paid to the persons entitled to re- ceive the same. And have you then and there this writ. [Add teste according to the court issuing the writ. See Nos, 55 and 56.] No. 129. Rule to Show Cause. In the District [or. Circuit] Court of the United States, District of . A. B., Plaintifi", ] vs. V No. . C. D., Defendant, j The President of the United States of America, to CD., You are hereby cited and admonished to be and appear PROCESS, MOTIONS, JUDGMENT, ETC. II5 before our district [or, circuit] court of the United States, within and for the district of , on , the day of , 1894, at lo o'clock a. m., to show cause, if any you know or have, why [here set forth the grounds for the rule, as, you should not be attached for contempt of court in that, etc^. And it is ordered that the marshal of this district make legal service and due return of this rule on or before the appearance day above noted. [Add teste according to the court issuing the writ. See Nos. 55 and 56.] No. 130. Undertaking in Attachment. The United States of America, District of , ss. Whereas, A. B. has commenced a civil action against C. D. in the district [or, circuit] court of the United States for the district of to recover the sum of dollars ; and, whereas, the said A. B. has applied to the clerk of said court, by filing the necessary affidavit, for an order of attach- ment, to be issued in said action, against the said C. D. Now, therefore, we, A. B., E. F., and G. H., hereby under- take to the said C. D. in the sum of dollars, that the said A. B. shall pay the said C. D. all damages which the said C. D. may sustain by reason of said attachment if the order should have been wrongfully obtained. Dated at this day of , 1894. A. B. [Seal.] E. F. [Seal.] G. H. [Seal.j [Add acknowledgment and justification of sureties, as in No, 58.J Il6 SUITS AT LAW. No. 131. Writ of Attachment. The United States of America, District of , ss. The President of the United States of America, to the Mar- shal of the District of , Greeting: Whereas, A. B. has this day, on the necessary affidavit being filed, obtained an order of attachment against C. D. in a certain action of {name of action\ now pending in the dis- trict [or, circuit] court of the United States, for the district of , wherein the said A. B. is plaintiff, and the said C. D. is defendant, to recover of the said defendant the sum of dollars. Now, therefore, you, the said Marshal, are hereby com- manded to attach and safely keep the lands, tenements, goods, chattels, stocks, or interest in stocks, rights, credits, moneys, and effects of the said C. D., defendant, in your district, not exempt by law from being applied to the plain- tiff's claim, or so much thereof as will satisfy to the said plaintiff his claim for dollars, and one hundred dollars, the probable cost of this action. And of this order of attachment, and of your proceedings thereon, you will make due return on the day of , 1894. \Add teste according to the court issuing the writ. See Nos. 55 and 56.] No. 132. Writ of Attachment for Contempt. The United States of America, District of , ss. The President of the United States of America to the Mar- shal of the District of , Greeting: " PROCESS, MOTIONS, JUDGMENT, ETC. 1^7 We command you that you attach C. D. so as to have his body before our district [or, circuit] court of the United States, within and for the district aforesaid, at the court rooms in the city of , on the day of , 1894, then and there to answer of a certain contempt by him lately committed against said court, in that [sei forth briefly the grounds for attachment\ and further to do and receive what our said court shall in that behalf consider. And have you then and there this writ. [Add teste according to the court issuing the writ. See Nos. 55 and 56.] No. 133. Scire Facias to Revive a Judgment (i). The United States of America, District of , ss. The President of the United States to the Marshal of the District of , Greeting: Whereas, A. B., citizen of the state of , lately in our circuit court of the United States for the district of , before our judges of our said court at , to wit: on the day of , 18 — , by the consideration of our said court, recovered against C. D. a judgment for the sum of dollars for his debt, as well as fifty dollars for his costs and charges by him about his suit in that behalf expended, whereof the said defendant is convict, as appears to us of record. And whereas, by the insinuation of the said A. B., we have in our said court understood, that although the judgment in form aforesaid be given, yet execution thereof still remains to be done, whereof he besought us to grant unto him in his behalf a proper remedy, and we, being will- ing that what is right and just should be done herein, do command you, the said marshal, that, by good and lawful men of your bailiwick, you give notice to the said C. D. that he be and appear before our judges at , at our said court, Il8 SUITS AT LAW. there to be held for the district aforesaid, the Monday of next, to show if anything he can say why the said judgment should not be revived, and the lien continued, and why the said plaintiff ought not to have his execution against C. D. for debt, interest and cost aforesaid, according to the force, form and effect of the recovery aforesaid, if he shall think fit. And further to do and receive whatsoever our said court shall then and thereof and concerning him in this behalf consider. And have you then and there the names of those by whom you shall make known to and this writ. [Add teste. See No. 56.J (i) As to when this writ may be employed see Foster's Fed, Prac, Sec. 368^. The rule 'of practice is that of the state in which proceed- ings are had. See McKnight vs. Craig's Adm., 6 Cranch, 183, (187); Walden vs. Craig, v. 14 Pet, 147 (151) ; Kenosha, etc., R. R. vs. Sperry, 3 Biss., 309. No. 134. Notice of Taxation of Costs. [Capiz'on.] Y. & Y., Attorneys for Defendant [or, Plaintiff]. Please take notice that the bill of costs in the above enti- tled cause will be taxed before the clerk of said court at his office at , in the city of , on the day of , at ten o'clock in the forenoon of that day as follows, to wit: Marshal's fees, $ . Clerk's fees, $ . Commissioner's fees, . . $ . Attorney's Fees, $ . X. & X., Attorneys for Plaintiff [or, Defendant]. Dated . Service accepted, etc. [as in No. 75.] PROCESS^ MOTIONS, JUDGMENT, ETC. 119 No. 135. Cost Bill. A. B., Plaintiff, ) District [or, circuit] court of, the United vs. y States for the district of . C. D., Defendant, j No. . CLERK'S FEES (i). Entering appearance of parties, . Drawing, filing and ack. cost bond, . . Issuing process (except for witness). Indorsing cause of action on writs. Issuing subpoenas for witnesses, . Entering marshal's return on writs; folios, Filing papers, Indorsing certificate of opening depositions Copying folios, Certificate and seal to copies, . . Taking afiidavits, Certificate and seal thereto Indorsing papers ; folios Entering folios on journal, . . . Drawing bonds ; folios, . . . Taking ack's under seal Swearing sureties to bond, . . Certificate and seal thereto, ■ • ■ . . Swearing witnesses to testify, . . Swearing witnesses to att. and travel, Entering folios claims of witnesses^ Issuing certificates of attendance, . Entering folios complete record, . Making dockets, indexes, etc., $1.00, $2.00, $3.00, . ... ... Commission on amount received, $ . . Making copy of cost bill ; folios, . GENERAL STATEMENT. Clerk, Marshal, Docket fee, Attorney's fees on depositions, .... Plaintiff's notary's fees on depositions. Defendant's notary's fees on deposi- tions, Defendant's witnesses' fees, . . . Plaintiff's witnesses' fees, Total ■IS 1. 00 ■IS •25 •IS .10 •IS .10 •35 .10 •3S •15 •IS •15 ■45 .10 ■35 .10 .10 •15 .10 ■15 PLAINTIFF. depend't. (I) See R. S. Sec. 828. 120 SUITS AT LAW. No. 136. Stipulation Extending Time to Settle Bill of Exceptions (i). \_Caption.^ Whereas, the settlement of the bill of exceptions in the above entitled cause has been heretofore noticed before the Hon. H. H., for , the day of , A. D. , it is hereby stipulated by and between the attorneys for both parties hereto that the same be adjourned till , the day of , I go — . Dated . R. Y., Attorney for Defendant. R. X., Attorney for Plaintiff. (i) Such stipulation should be filed on or before the date noted for settling the bill of exceptions. No. 137. Order Enlarging Time for Filing Bill of Exceptions (i). [Caption.l This day came the defendants and made application for an order extending the time for the signing, allowance and filing of the bill of exceptions herein, and cause being shown there- for, such application is granted, and the time for the signing, allowance and filing of the bill of exceptions of the above named defendants is extended for ten days from and after the last day of the present term of court, to wit, from and after . (i) This order should be made during the trial term. See Bank vs. Eldred, 143 U. S., 298; Merchants' Ins. Co. vs. Buckner, 39 C. C. A., 19. S. C. 98 Fed. Rep., 222. PROCESS, MOTIONS, JUDGMENT, ETC. 121 No. 138. Bill of Exceptions (i). The Circuit Court of the United States. District of . No. . Bill of exceptions. A. B. vs. CD. Be it remembered, that on the trial of this cause in this ■court, at the term, A. D. , of said court, the Hon. C. D., Judge, presiding, when the following proceedings were had, to wit : A jury was impaneled and sworn according to law, and thereupon the plaintiff, to sustain the issue upon his part, offered the testimony of the following witnesses as his •evidence in chief: [Here set forth the plaintiff's testimony ■at length.] At the close of the foregoing evidence in chief offered by the plaintiff, the counsel for the defendant moved the court to •direct a verdict for the defendant, submitting the same and the reasons therefor in writing in the words and figures fol- lowing: [Here set out the motion to instruct for the de- fendant.'] The court overruled said motion, stating that defendant could rely upon the same at the close of its evidence, to which ruling of the court counsel for the defendant then and there 'excepted. The defendant, to sustain the issue upon its part, then, through its counsel, offered the testimony of the following witnesses as his evidence in chief: \^Here set out the defend- ant's testimony at length.] This was all the evidence in the case, and at its conclusion the defendant again renewed its said motion in writing, as above printed, to direct a verdict in its favor, and after the argument of counsel, both of the plaintiff and defendant, to 122 SUITS AT LAW. the court upon said motion, and also to the jury upon said case upon its merits, the said motion was by the court, in its charge to the jury, overruled, and to which action of the court in overruling same the defendant then and there, by the per- mission of the court, excepted. After said argument the court charged the jury as follows: [Here set out the charge of the court to the jury, the excep- tions thereto and the special requests to charge indicating whether given or refused and exceptions taken and al- lowed.'] (2) The jury thereupon retired to consider their verdict, and having returned into court a verdict for the plaintiff [or the defendant], the defendant [or plaintiff A. B.J afterwards on, to wit : the day of , moved the court to set aside the said verdict and grant it a new trial. \_Set out motion for a new trial.'] Which motion for a new trial was, after argument by counsel for and against the motion, respectively, and after due consideration by the court on the day of , over- ruled. And now, in furtherance of justice and that right may be done the defendant, C. D. \^or plaintiff A. B.] tenders and presents the foregoing as his bill of exceptions in this case to the action of the court, and prays that the same may be settled and allowed and signed and sealed by the court and made a part of the record, and the same is accordingly done this the day of . C. D., Trial Judge. (i) In preparing a bill of exceptions counsel should be careful to observe that the grounds of exception to the admission of testimony are specifically stated. A general exception which fails to point out the grounds of exception does not furnish a proper basis for review in an appellate court. The objection that the question is irrelevant and imma- terial is general and insufficient. Merchants' Ins. Co. vs. Buckner, no Fed. Rep. 34s; R. R. Co. vs. Hellenthal, 31 C. C. A., 414, 88 Fed. Rep., 116; Burton vs. Driggs, 20 Wall., 125; Toplitz vs. Hedden, 146 U. S. 252. The general rule as to the allowance of bills of exceptions is thus PROCESS, MOTIONS, JUDGMENT, ETC. 1 23 stated by Mr. Justice Gray (Bank vs. Eldred, 143 U. S. 298, 12 Sup. Ct. 452, 36 L. Ed. 163) : "By the uniform course of decision, no exceptions to rulings at a trial can be considered by this court, unless they were taken at the trial, and were also embodied in a formal bill of exceptions presented to the judge at the same term, or within a further time allowed by order entered at that term, or by standing rule of court, or by consent of par- ties; and, save under very extraordinary circumstances, they must be allowed by the judge and filed with the clerk during the same term. After the term has expired, without the court's control over the case being reserved by standing rule or special order, and especially after a writ of error has been entered in this court, all authority of the court below to allow a bill of exceptions then first presented, or to alter or to amend a bill of exceptions already allowed and filed, is at an end. U. S. vs. Breitling, 20 How. 252; 15 !>. Ed., 900; Miiller vs. Ehlers, 91 U. S. 249, 23 L. Ed. 319; Jones vs. Machine Co., 131 U. S. Append. 150, 24 L. Ed. 92s; Hunnicutt vs. Peyton, 102 U. S. 333, 26 L. Ed. 113; Davis vs. Patrick, 122 U. S. 138, 7 Sup. Ct. 1102, 30 L. Ed. 1090; Chateaugay Ore & Iron Co., Petitioner, 128 U. S. 544, 9 Sup. Ct. 150, 32 L, Ed. S08." A bill of exceptions may be Settled and filed at the term, a motion for new trial is overruled. Merchants' Ins. Co. vs. Buckner, 98 Fed. Rep. 222, 29 C. C. A., 19. (2) Sec Supreme Court Rule 4 and C. C. A., Rule 10. Bill of exceptions. No. 139. Bill of Exceptions (Another Form) (i). In the Circuit Court of the United States for the ■-■" • district of -. A. B. vs. CD. This cause came on for hearing before the Hon. C. D., Judge, etc., aijd a jury; present, R. X. and G. X., attorneys for the plaintifif, and R. Y. and G. Y., attorneys for defendant, when the following proceedings were had, to wit : l^Here insert in full the stenographic report of the evidence, the charge to the jury, requests for special instructions, rul- ings of the court thereon, and exceptions.'] After hearing all the evidence, the argument of counsel and 124 SUITS AT LAW. charge of the court, the jury retired to consider their ver- dict; and returned their verdict in favor of plaintiff, assessing^ his damages at dollars, upon which judgment was by the court entered up against defendant, to all of which defendant excepted. Upon motion of defendant, the court allows defendant fif- teen days within which to present and argue motion for new trial. And thereupon within the time allowed, and on the day of , 190 — , defendant moved for new trial on the following grounds: [Here insert motion for new trial. '\ After consideration of said motion, the court overruled the same in the following language, to which the defendant ex- cepted : {^Insert opinion overruling motion for new trial.'] Thereupon defendant tenders this its bill of exceptions to the action of the court in the various particulars therein set out, which is signed in open court, sealed and made a part of the record in this case. This the day of , A. D. . C. D., Trial Judge. (i) See note to Form No. 138. MANDAMUS. 1 25 MANDAMUS* No. 140. Petition for Writ of Mandamus to Compel a Municipality to Levy Tax to Pay a Judgment (i). The Circuit Court of the United States for the Division of the District of . To the Honorable, the Judges of the Circuit Court of the United States: for the Division and District aforesaid : The petition of R. J., receiver of the Water & Electric Light Company. Petitioner would respectfully state that he is a resident and citizen of the state of , and was, on the day of , appointed receiver of the Water & Electric Light Company, *The courts of the United States derive power to issue a writ of man- damus only from the constitution and laws of the United States and not from common, law. Knox county vs. Aspinwall, 24 How. 384. The supreme court is given power to issue this writ by R. S. sec. 688. Marbury vs. Madison, i Cranch, 137; in re Green, 141 U. S. 326; ex parte Bradstreet, 7 Pet. 646. The circuit courts of appeal by sec. 12 of the Act of March 3, 1891, 26 Stat at L. 826. U. S. vs. Severens, 18 C. C. A. 314, 71 Fed. Rep. 768. The circuit and district courts by R. S. sec. 716 and the supreme court of the District of Columbia by R. S. relating to D. C. sec. 763 as amended Feb. 27, 1877, IP Stat, at L. 253, U. S. vs. Schurz, 102 U. S. 394- In no case can a court issue a writ of mandamus in the exercise of orig- inal jurisdiction but only as ancillary to some other proceeding the right of which they have acquired jurisdiction. Mclntire vs. Wood, 7 Cranch 505 : Rosenbaum vs. Bauer, 120 U. S. 450, or in the exercise of appellate juris- diction. Matljtu'y vs. Madison, i Cranch 137 ; in re Green, 141 U. S. 326 ; U. S. vs. Severens, 18 C. C A. 314, 71 Fed. Rep. 768. The proceedings are on the law side of the court. Ward vs. Gregory, 7 Pet. 633; Muhlenberg Covmty vs. Dyer, 13 C. C. A. 64, 65 Fed. Rep. 634- 126 SUITS AT LAW. by an order of the Circuit Court of the United States for the division of the district of , pronounced in the cause of the National Construction Company against said Water & Electric Light Company and others. By said order petitioner, as receiver, was authorized to sue for the debts due said Water & Electric Light Company, and did, on the day of , by leave of said court, file a bill in said cause to collect from the city of the amount due from it to said Water & Electric Light Company. After appearance and defense made by the city of , and on a final hearing of said cause, petitioner, as receiver as aforesaid, recovered of the city of the sum of ($ ) dollars, and the costs of said cause, as appears from a copy of said decree herewith filed as Exhibit " A," and asked to be taken as a part hereof, but not for copy. Petitioner further states that the city of is a municipal corporation, chartered and existing under acts passed by the General Assembly of the state of , and is situated in county, state of , and within division and district afore- said. Under the laws of the real and personal property of said municipal corporation held and used for its corporate purposes, is exempt from levy and sale by execution. But petitioner charges that said city of , by the laws of and its charter, is authorized through and by its board of mayor and aldermen to levy and collect taxes on all property, privileges and polls subject to taxation for state purposes, for the payment of judgments and decrees rendered against it, and it is the duty of said board of mayor and alder- men to levy and collect taxes sufficient to pay off and discharge the judgment aforesaid in favor of petitioner, and the costs adjudged against it. Petitioner further states that in the year 189 — , the board of mayor and aldermen of said city did levy a tax of cents on the $100 for water rent, and cents on the $100 for lights, collected the same, or a large part thereof, and the MANDAMUS. 1^7 amount so levied and collected did become, under the contract then existing between the city of and the Water & Elec- tric Light Company, a fund exclusively for the payment for -water and lights under said contract, the judgment aforesaid* being for water and lights furnished under same contract. But notwithstanding its duty in this respect, the board of mayor and aldermen refused to pay over the amount collected of said levy, and has refused to enforce payment to itself from certain taxpayers, of a considerable amount, of the levy. Petitioner further states that since the rendition in his favor of the judgment aforesaid against the city of he has, through his attorneys, demanded payment of the same, but the said city has failed and refused to pay any part of said jitdgment or the costs incident thereto, or to make any levy of taxes for that purpose. Petitioner further states that he has also had execution is- sued on said judgment, and the same was, by the marshal, presented for payment to the officials of said city, but payment of same was refused, and it has been returned nulla bona. Petitioner is informed and believes that the mayor and al- dermen of the city of have refused and have determined not to assess or collect any taxes for the payment of the judg- ment aforesaid, and he is advised that he had no other ade- quate remedy to enforce the payment of said judgment. Petitioner therefore prays that your honors grant an order for the issuance of an alternative writ of mandamus com- manding and directing the city of to forthwith pay the amount of plaintiff's judgment, with interest and costs, or to appear before the court on some day to»be named in said writ, and show cause, if any there be, why a peremptory writ of mandamus should not issue requiring a sufficient tax to be levied, assessed and collected on and out of the taxable prop- erty within the corporate limits of the city, to pay said judg- ment, interest and costs, and requiring said judgment, interest and costs to be paid out of the proceeds of such levy, assess- 128 SUITS AT LAW. ment and collection, within ninety (90) days from the service of said writ ; that said alternative writ of mandamus be issued and directed to said city of , C. L., Mayor, and to W. S., •J. S., J. L., R. J., I. E., the aldermen of said city; he further prays for such other and general relief as he may be entitled to in the premises. This is the first application for writ of mandamus in this cause. X. & X., Attorneys for Petitioner. State of , County, ss. Personally appeared before me, W. P., a notary public, W. W., and made oath in due form of law that he is agent and superintendent of plaintiff, is acquainted with the facts al- leged in the foregoing petition, and same are true to the best of his knowledge, information and belief. W. W. Subscribed and sworn to before me, this day of , A. D. . W. P., \_Seal.1 Notary Public. (i) Taken from Cleveland, Tenn. vs. Cunningham, receiver, 98 Fed. Rep. 657, 39 C. C. A. 311. As to when a writ of mandamus may issue to compel state officers to levy a tax to satisfy a judgment obtained in the U. S. court, see Knox County vs. Aspinwall, 24 How. 383 ; Riggs vs. Johnson County, 6 Wall. 184 ; Louisiana vs. V. S. 103 U. S. 289 ; Board vs. Thompson, 10 C. C. A. 154, 61 Fed. Rep. 915. No. 141. Notice of Application for Writ of Mandamus. To the Board of Mayor and Aldermen of the City of You are hereby notified that we will, on the day of — , before the Hon. C. D., at his office in the Custom House at , apply for alternative writ of mandamus to be issued by the Circuit Court of the United States for the Division MANDAMUS. 129 of the District of , against you, the city of , re- quiring you to levy a tax upon all the property, privileges and polls subject to levy, to pay and satisfy a judgment recovered by me against you in said court, for the sum of ($ ) dollars. Dated this day of , A. D. . R. J., Receiver. By R. X., His Attorney. State of , County, ss. Personally appeared before me, W. P., a notary public, W. W., and made oath that he, on the day of , de- livered a copy of the foregoing notice to the mayor of the city of . W. W. Sworn to and subscribed before me, this day of , A. D. . W. P., [5" CONDEMNATION PROCEEDINGS. 169 and the remaining one-half of said fund so realized to be distributed by the said Harley Barnes, as administrator, among the heirs of the said Eunice K. Parmelee, deceased, as they may be entitled to receive the same. Wherefore, these answering defendants pray that should the court find the appropriation of the said second parcel to be necessary that a jury may be impaneled to determine and as- sess the value of said premises described as parcel No. 2 in the petition; that the. court may find and determine the right, title and interest which these defendants have or ought to have in said parcel, and that upon the payment of the value thereof into court, that the same may be ordered distributed to these defendants as their interest may appear, and for such other and further relief as they may be entitled to. Y. & Y., Attorneys for above Defendants. [VeriUcation as in JVo. 155.] No. 158. Answer to Petition to Condemn under a State Statute (i). [Caption.] And now comes the defendant and for answer to the plain- tiff's complaint in the consolidated action herein, denies that the said plaintiff is, or at all or any of the times mentioned in said complaint was, a corporation duly or otherwise incor- porated under the laws of the said state. Denies that the said plaintiff has the power to exercise the right of eminent domain in this proceeding by virtue of the authority of title seven of special proceedings of a civil nature of the revised statutes of Idaho of 1887, or otherwise. Denies that the plaintiff will construct a telegraph line as described and set forth upon the route or plan or in the man- ner or form set forth in said complaint or otherwise; and 170 SUITS AT LAW. the said defendant further denies that its said right of way is not at any places or portions thereof less than one hundred feet in width, but, on the contrary, avers that in some por- tions thereof it does not exceed fifty feet in width and varies from fifty to two hundred feet in width on different portions of its said route "and right of way. And the defendant denies that the only land sought to be occupied if the plaintiff were permitted to construct said telegraph line as proposed will be one circular foot, five feet in depth, in which the poles for said line will be planted, or that the portion of said right of way proposed to be taken will be only a very small fractional part of the entire right of way of this defendant, and denies that the use to which it is pro- posed to be and would be applied if so taken is a public use, or is authorized by law, or that the taking proposed by this proceeding is necessary for such use, or that the public or any use to which it is to be applied as proposed by said complaint is a more necessary public use than that to which it has already been appropriated. Defendant denies that by this proceeding the plaintiff does not seek to destroy or curtail or in any way interfere with the franchises or rights of this defendant. Denies that so much of the right of way of defendant company as is sought to be appropriated to the use of the plaintiff has not been appropriated, or is not likely in the future to be needed by this defendant for railroad purposes, or that the same is not rea- sonably essential to such use, or is liable under the law to condemnation proceedings for a different public use as is sought by the plaintiff in this proceeding or otherwise. Denies that the taking sought in this proceeding will not destroy or curtail any franchise or property essential to the full or complete enjo3mient by this defendant of its franchise, right of way, and property. And the defendant further denies that such portion of the right of way of this defendant as is sought by the plain- CONDEMNATION PROCEEDINGS. Ijl tiff for the purposes aforesaid is not used, or that the same or any portion thereof is not essential to its enjoyment of its franchises or property, or that the appropriation sought by the plaintiff in this proceeding is for a more necessary public use than that to which it has already been appropriated. Further answering, the defendant denies that the said plain- tiff will occupy only such portion of the right of way of this defendant as is not necessary for the use or which is not being used by this defendant, or that at any time this de- fendant needs any portion of its right of way where the said poles and lines of the plaintiff are permitted tp be placed upon said right of way, for any raili-oad use, the plaintiff will upon reasonable or any notice, or at its own expense, re- move its poles or wires to such or other parts of said right of way as may be designated by the defendant company, or so as to in no way interfere with the use of any portions of the right of way of this defendant for the purposes for which it has already been appropriated. Denies that the construction, maintenance, or operation of its telegraph line upon the right of way of the defendant railroad company as appropriated will be of no damage to the defendant, or will not diminish in value said right of way for railroad purposes; and defendant denies that plaintiff's telegraph line will not come in contact or interfere with any telegraph lien already constructed on said right of way. Further answering, this defendant says that it has no in- formation or belief sufficient to enable it to answer the alle- gation in said complaint with reference to the acceptance by the plaintiff of the provisions of the said Act of Congress, and upon that ground it denies that the said plaintiff has duly or otherwise accepted the provisions, or any of them, of the said Act of Congress approved July 24, 1866, or agreeing thereby that telegrams between the said departments of the govern- ment or their officers or agents shall at all or any times have priority over all other business in their trainsmission over the 172 SUITS AT LAW. lines of said company, or that the charges for such tele- grams shall not exceed the rates annually fixed by the post- master-general. And the defendant denies that all or any of the preliminary steps required by law have been taken to en- title the plaintifif to institute these proceedings. Further answering, the defendant alleges that it is the successor in interest of the rights of way and property of the Utah Northern Railroad Company, and the Oregon Short Line and Utah Northern Railway Company; that the said rights of way secured by the said companies, the predeces- sors in interest of this defendant, were secured in part by negotiation and purchase from private parties owning the lands over and across which the said railroad was located and constructed, and as to other and the principal portions of the said right of way, the same was secured by special grants tnade by various Acts of Congress to the defendant's said predecessors in interest; and other portions of said right of way were secured by compliance, on the part of the defend- ant's predecessors in interest, with the provisions of the Act of Congress of the United States, entitled " An Act granting to railroads the right of way through the public lands of the United States," approved March 3, 1875. That this defendant and its predecessors in interest in said right of way, however the same may have been acquired, have, ever since the same was so acquired, held, owned, used, and possessed the same for the purposes of the construction, main- tenance, and operation of said line of railway, and that the same and the whole thereof is necessary for such use. That the predecessors in interest of this defendant, up to the time that the said property and right of way was transferred to and became the property of this defendant, and this defendant since that time, has had and now has the full dominion, possession, and undivided control over every portion of its said right of way, so that at all times it could exclude there- from all persons not in its employ or under its control. CONDEMNATION PROCEEDINGS. 1/3 and that such possession and control has been and is necessary to enable this defendant to safely, properly, and adequately discharge its obligations as a common carrier, and that such obligations could not be properly and adequately discharged if this defendant by the proceedings herein should be com- pelled to share with any other person or corporation the do- minion, possession, and control over its said right of way or any portion or part thereof, or in the event any other person or corporation should acquire the right of ingress and egress at all times over, along, and upon its said right of way or any portion of the same. And the defendant avers that no power or authority has been given the plaintiff or any other person or corporation to wrest from this defendant the exclusive dominion and con- trol over, and use of its right of way and every part thereof, or to compel the defendant to share the same with any other person or corporation whatsoever. Defendant further avers that the erection, maintenance, and operation of a line of telegraph on the right of way of said defendant as proposed by the said plaintiff will greatly inter- fere with, harass, and annoy the said defendant in the con- duct of its business, and will materially impair and interfere with the use and occupation by said railroad company of its said right of way, and of its rights of property thereunder and possession thereof, and will increase the hazards of railway operation by it, and will endanger the lives and property of the traveling public and the numerous employees of this de- fendant. And the defendant denies that it is necessary for the said plaintiff to take or acquire the right of way along or upon the right of way of this defendant described and referred to in the complaint herein, and alleges that to create in plaintiff the right to erect and maintain such line of tele- graph along and upon the right of way of this defendant at all times and with authority and power to enter thereon for the purpose of maintaining, repairing, and operating such 174 SUITS AT LAW. telegraph line, will destroy the franchise and rights of the de- fendant company, and deprive it of the right to properly and safely operate its said railroad, and prevent it from discharg- ing the obligations in that behalf imposed by law. Further answering the said complaint this defendant avers that the laws of the state of Idaho have conferred upon do- mestic telegraph corporations only the right and power of eminent domain, and have not conferred such power upon for- eign corporations, but, on the contrary, it is the policy of the said state of Idaho to deny to foreign corporations such pow- er and authority. And the defendant alleges that the Postal Telegraph-Cable Company of New York, a corporation or- ganized and existing by virtue of the laws of said state, well knowing the policy of the state of Idaho, as above declared, and well knowing the inhibitions of the law of said state de- nying to foreign corporations the' right to exercise eminent domain, in order, nevertheless to circumvent the said policy of said state and render nugatory the laws thereof in that be- half, did recently, to wit, on or about the day of July, 1899, cause certain of its employees and other persons to or- ganize a nominal and pretended corporation under the laws of Idaho, called the Postal Telegraph-Cable Company of Ida- ho, and being the pretended plaintiff herein; but the defend- ant avers that said corporation has in reality no separate ex- istence from the Postal Telegraph-Cable Company of New York; that all its income, from whatever source, is forthwith remitted to said New York company and all its expenses borne and defrayed by said company, its charges, rates, and business policy dictated by said company, and that the sole and only purpose of said organization under the laws of Idaho was and is to enable the said Postal Telegraph-Cable Company of New York, by means of said pretended and al- leged corporation of Idaho, to exercise within the limits of said last-named state the right and power of eminent domain, and to wrest from the citizens of said State, against their CONDEMNATION PROCEEDINGS. 175 will and consent, whatever property the said Postal Tele- graph-Cable Company of New York deems necessary or con- venient to the conduct of its business. . And the defendant submits that the said foreign corpora- tion, to wit, the said Postal Telegraph-Cable Company of New York, ought not to be permitted to accomplish by indi- rection what the laws of the state of Idaho prohibit it from doing and accomplishing in its own name and directly. Wherefore, the defendant prays to be hence dismissed, with its costs. Y. & Y., Attorneys for Defendant. [Verification as in No. 155.J (i) Taken from record in Oregon Short Line R. R. Co. vs. Postal Telegraph Cable Co. of Idaho, 11 1 Fed. Rep. 842. See also Colorado E. Ry. Co. vs. Union Pacific Ry. Co., 41 Fed. Rep. 293 ; affirmed in 94 Fed. Rep. 312 ; and see Boom Co. vs. Patterson, 98 U. S. 403. No. 159. Reply to Answer in Cond.£miiation Proceedings. [Caption.'\ And now comes The United States, by J. H., United States Attorney for the district of , and for reply to the answer of F. K. to the petition filed herein, says that it de- nies that the defendant has any interest whatever in the premises known as Case Place, and described as Parcel No. 2 in plaintiff's petition, either as owner, in equity or at law of the fee simple or reversionary interest in and to the said parcel of land, which was conveyed by Leonard Case t-o the city of Cleveland as described in defendant's answer. J-H., United States Attorney, District of . 176 SUITS AT LAW. The United States of America, District of , ss. J. H., being first duly sworn, says that he is the United States Attorney for the district of , and that the statements and allegations contained in the foregoing reply are true, as he verily believes. J. H. Sworn to before me, and subscribed in my presence, by the said J. H., this day of , A. D. . B. B., Clerk Circuit Court of United States. No. 160. Judgment of Condemnation and Order Appointing Commis- sioners to Assess Damages. In the matter of the petition of the United States of America for condemnation, for the use of petitioner for govern- ment lighthouse purposes. Whereas, it has been made to appear to this court that a petition has been made and filed in this court for condemna- tion of the above described property and land, and that the petition was filed for the purpose of acquiring the title and ownership of the said land for the United States of America for lighthouse purposes as more particularly set forth in said petition, and that a summons was issued in accordance with prayer of said petition summoning the village of , a municipal corporation in the county of , in the state of , and district thereof, and one M. M., of , in said district, who were stated in said petition to be the per- sons interested in said lands and premises and who were cited by said summons to show cause, if any they had, against the said petition, and whereas it appears by the return of the marshal of said district of , now on file in this CONDEMNATION PROCEEDINGS. 1/7 cause, that due and personal service of said summons was had upon the president of said village of , and upon the said M. M., and that said service was according to law and the practice of this court, and whereas, the said village of has this day appeared in said cause, by T. F., of , as its attorney, and the said M. M. has this day appeared in said cause, by J. C, of aforesaid, as her attorney; and whereas, the said village of and the said M. M. were duly notified by J. N., United States Attorney for the district of , that this case could be brought on for hear- ing before this court this day, and that certain action partic- ularly set forth in said notice would be taken therein, due proof of said notice now being on file in said cause, and the court being fully informed in the premises, on motion of said J. N., United States Attorney aforesaid, the court did pro- ceed to hear the said petition and all persons interested there- in, and to decide the question raised therein, and after an ex- amination of the petition and other papers in said proceed- ings and hearing all parties interested, on motion of J. N., United States Attorney for the district of , the said T. F., attorney for the said village of , and the said J. C, attorney for the said M. M., consenting thereto, the said petition and proceedings in this cause are sustained, and E. F., G. H., and J. S., residents and freeholders within the said county of , neither of whom is interested or of kin to any person interested in the said land or any part there- of, as commissioners to ascertain and determine the necessity for taking said land and property more particularly described in said petition, and also to ascertain and determine the com- pensation or damages or both which ought to be paid by the United States of America to each of the owners and persons interested in said land and premises as and for his, her, its or their just compensation for the said land and premises, and also to ascertain the separate interest of each person or mu- nicipal corporation owning or interested in the said lands 178 SUITS AT LAW. and premises, or any part thereof, and the description of his, her, its or their separate interest in the said land and prem- ises or any part or parcel thereof. It is further ordered that said commissioners and each of them shall be sworn to faith- fully and justly discharge their duties in the premises accord- ing to their best ability, and that they and each of them shall visit the said land and premises, and shall hear in the pres- ence and under the direction of said court evidence touching the matters they are to find brought forward by any persons or corporations having an interest in said land and premises, and shall find all necessary facts to possess the court of the truth and right of the matter, but shall not be required to find what evidence was offered or given, land shall report to the court, in writing, their findings. And it is further ordered that all testimony that shall be adduced on such hearing to be had before said commissioners shall be given under oath, which shall be administered by the clerk of said court or by any one of said commissioners in the manner and form pre- scribed by the laws of the state of Michigan in and for simi- lar cases. No. 161. Report of Commissioners of Damages. The District Court of the United States for the District of , Division. In the matter of the petition of the United States of America for condemnation, for the use of the petition for light- house purposes. To the Hon. H. S., District Judge : The undersigned, commissioners appointed by order of this court in said matter oh the day of , requiring them to determine the necessity for taking the land described in CONDEMNATION PROCEEDINGS. 179 the above title, also the compensation or damages which ought to be paid by the United States to each of the owners and persons interested in said land for his, its or their compensa- tion for said land, and the separate interest of each person or corporation interested in said land, and the description of each of their separate interest therein, beg leave to report that pursuant to the mandates of said order, they First. Were duly and severally sworn by a United States commissioner to faithfully and justly discharge their duties in the premises according to their best ability, which said oaths are in writing and hereto attached. Second. After due and lawful notice to each of the per- sons and corporations appearing in this cause, viz. : the United States of America, village of , and M. M., through their several attorneys, they did proceed to and did visit and exam- ine the said land and premises, and after the service of no- tice aforesaid to each of the interested parties, did, under the direction of said court, hear evidence produced by the United States of America, village of and M. M. touching the said matters, the witnesses produced aforesaid being first ■duly sworn by E. F., one of said commissioners, in the man- ner and form prescribed by the laws of the state of in and for similar cases. Third. Your commissioners determined from the exam- ination and testimony aforesaid that there is a necessity for taking by the United States of the land and property de- scribed in said petition — namely \_here describe the property as in a deedl, for the use of the said United States govern- ment for lighthouse purposes. Fourth. We find that, aside from, the municipal corpora- tion of — — , no person or corporation has any interest of any kind in said property, and that the village of is the sole •owner in fee of the said above-described premises. Fifth. Your commissioners assess and determine the value l80 SUITS AT LAW. of the aforesaid and above-described premises at the sum o£ dollars. Sixth. Your commissioners further determine that by the taking of the premises described above the maintaining a fog horn thereon, other property, to wit : a park belonging to said respondent, , is damaged to the amount of dollars. E. R, G. H., J. S., Commissioners. Dated . No. 162. Judgment for Condemnation and for Damages (Jury Waived) , (I). [^Caption.'\ This cause having come on regularly to be heard before the court and without a jury, a jury having been expressly waived by both parties, plaintiffs appearing by J. R. Mcin- tosh, Esq., and O. W. Powers, Esq., and the defendant ap- pearing by P. L. Williams, Esq., and F. S. Dietrich, Esq., and the court having heard read the pleadings and having heard the proofs and arguments of counsel, and having duly con- sidered the pleadings, proofs, and arguments of counsel, and having made and filed its findings of fact and conclusions of law, and being fully advised in the premises, doth order and adjudge : That the use to which the property which plaintiff seeks to condemn for a telegraph line is a public use authorized by law, and that the public use requires the condemnation of the easement sought by plaintiff of the property described in plaintiff's complaint, the taking of which is necessary to such use, the same being a more necessary public use than that to to which it is already appropriated, namely, a right of way CONDEMNATION PROCEEDINGS. l8l for defendant's railroad line; that the property sought to be condemned by plaintiff constitutes only a very small part of a large parcel ; that no damage will accrue to that portion not sought to be condemned by reason of its severance from the portion condemned, and the construction of the telegraph line of plaintiff as the same is to be constructed by plaintiff; that in the taking of the property to be condemned the damages, including the value of the property to be taken, will not ex- ceed five hundred dollars; that the portion of the land not sought to be condemned will neither be benefited nor damaged by the construction of the telegraph line as proposed by plain- tiff, and that the sum of five hundred dollars will remunerate the defendant for all damages suffered by it and for the value of the property taken by these proceedings. Therefore, the court doth further order and adjudge that five hundred dollars is just, and full compensation to be pai4 and made the defendant, the Oregon Short Line Railroad Company ; that upon the payment by plaintiff to defendant of the sum of five hundred dollars within thirty days from the date hereof said plaintiff, the Postal Telegraph-Cable Com- pany of Idaho be let into possession, operation, and control of the proposed right of way for telegraph purposes and the construction and operation of a telegraph line as set out in plaintiff's complaint, from Cannon Station on the state line between the .state of Utah and the state of Idaho, northerly and across the state of Idaho to Monida, upon the state line between the state of Montana and the state of Idaho, upon and along the right of way of defendant. That plaintiff may en- ter upon the right of way of defendant to construct, main- tain, and operate said telegraph line to be constructed, com- mencing at said Cannon Station upon the right of way of defendant, and running thence northerly to the county of Oneida upon defendant's right of way ; thence northerly along the right of way of defendant through the county of Ban- nock; thence northerly along the right of way of defendant l82 SUITS AT LAW. through the county of Bingham; thence northerly along the right of way of defendant through the county of Fremont to Monida, situate on the state line between the state of Idaho and the state of Montana; that the poles for the line of tele- graph to be erected by plaintiff upon the right of way of de- fendant be thirty (30) feet in length, planted firmly in tlie ground at a depth of not less than five ( 5 ) feet, and not nearer than thirty (30) from the outer edge of the railroad bed'of the defendant, or at such points as may be agreed upon by said plaintiff and said defendant; that at or near the top of said poles there be fastened crossarms eight (8) feet in length, with insulators attached, upon which there be stretched. from pole to pole a sufficient number of wires to transmit, speedily and promptly, all business entrusted to said plaintiff for transmis- sion by the government and the public ; that where it becomes ^ecessary to cross the track of said railroad of said defendant, said poles of said plaintiff be of such height above the ground and the wires strung so high as to prevent interference with the operation or conduct of defendant's business, and so as not to endanger the life or limb of defendant's employees; that if at any time defendant needs any portion of its right of way where said poles and telegraph line are constructed, for railroad purposes, then, in such event, the plaintiff shall, upon reasonable notice, and at its own expense, remove said poles and telegraph line to such other point or points on said right of way as may be designated by plaintiff ; that said telegraph poles be erected at a distance of about one hundred and sixty- seven feet from each other, and consists of a single line of poles, the line of telegraph to be constructed of good mate- rial and upon the most improved plan; said poles to be one foot in diameter at the base and so erected as to be held firmly in position ; that plaintiff shall not attach its wires or fixtures of any kind to the buildings, trestles, bridges, or structures of the defendant railroad company, and shall not erect any of its poles upon any embankment of the defendant company, CONDEMNATION PROCEEDINGS. 183 that the telegraph line of plaintiff shall be constructed so that it will not come in contact with or interfere with any telegraph line already constructed on said right of way of defendant. It is further ordered and adjudged that plaintiff, Postal Telegraph-Cable Company of Idaho, shall in all manner com- ply with the statutes of the state of Idaho in the construction of its line of telegraph aforesaid, and with its representations in its complaint, and upon the payment of the compensation aforesaid, within the time aforesaid, the Postal Telegraph- Cable Company of Idaho is hereby authorized to .enter upon the right of way aforesaid of the Oregon Short Line Rail- road Company and construct its line of telegraph as above set forth. It is further ordered and adjudged that plaintiff pay the costs of this proceeding. (i) Taken from record in Oregon Short Line R. R. vs. Postal Tele- graph Cable Co. of Idaho, in Fed. Rep. 842. See also Colorado E. Ry. Co. vs. Union Pacific Ry. Co., 41 Fed. Rep. 293 ; affirmed in 94 Fed. Rep. 312 ; and see Boom Co. vs. Patterson, 98 U. S. 403- No. 163 Order Directing that a Jury be Empanelled to Assess Com- pensation for Property to be Condemned. {Caption.l This cause coming on for hearing, and being submitted to the court upon the evidence produced, the court find that the defendants have been duly served with p;-ocess and are prop-, erly before the court, and further find that the plaintiff has the legal right to make the appropriation prayed for in the pe- tition, and that the same is necessary, and that plaintiff is un- able to agree with the defendants as to the compensation to be paid for the property sought to be appropriated herein, to all of which the defendants, each and all, except. 184 SUITS AT LAW. It is therefore ordered that to assess compensation for said property, herein sought to be appropriated, a jury be impaneled according to law, and that said jury come on the day of , at o'clock a. m., which time is hereby fixed for the impaneling of the same. No. 164. Order Empanelling Jury to Assess Damages in Condemna- tion Proceedings [Caption.] This cause came on this day to be heard and the parties and their attorneys appeared and also the following named jurors, heretofore summoned herein, viz.: [name all the jurors], and the panel not being complete, it was ordered that the mar- shal fill the vacancy with talesman and therefore S. D. was called and the panel was complete. And each juror being in- terrogated as to whether he was in any way interested, either as owner or agent or otherwise, in the property sought to be condemned and appropriated, and each answering in the neg- ative, and neither party excepting thereto, the said jurors were duly sworn according to law. And on motion of J. H., United States Attorney for the district of , a writ was issued to the marshal for a view by the jurors in the presence of J. D., of the premises sought to be appropriated, returnable according to law at two o'clock p. m., and thereupon said jury having heard the testi- mony adduced on behalf of the defendant. Case Library, in part, and the hour of adjournment having arrived, this cause was continued until tomorrow morning at 9 : 30 o'clock. CONDEMNATION PROCEEDINGS. 185 No. 165. Writ to Conduct Jury to View Premises in Condemnation Proceedings. The United States of America, District of , ss. The President of the United States of America, to H. R. , U. S. Deputy Marshal for the District of , — Greeting : You are hereby commanded to conduct the twelve jurors herein named, to wit : [naming themi , to view the property or premises sought to be appropriated by the United States of America and owned by R. S., et al., then and there to view the premises and property aforesaid, in the presence of J. D., on the part of the plaintiff and the defendants; and you make return of the manner in which you have executed this writ, to this court, forthwith upon its execution. Witness the Honorable Melville W. Fuller, Chief Justice , of the United States, this day of , A. D. , and in the year of the Independence of the United States of America. B. R., [Seal.^ Clerk of the Circuit Court of the United States for the District of No. 166. U. S. Marshal's Return to Said Writ. The United States of America, District of , ss. Received this writ on the 27th day of November, 1899, at II : 30 a. m., and upon the same day between the hours of II : 30 a. m. and 12.30 p. m., I personally conducted the with- in named jurors through the Case building and in the pres- ence of J. D., appointed by the court for that pur- l80 SUITS AT LAW. pose, said jury viewed the exterior of said building, also the interior and the various office rooms located upon the several floors of said Case building, together with the basement of said building, also the interior of the Citizens' Saving and Loan Association, including the basement; also the office of the Savings Building and Loan Company including the base- ment; also the room occupied by The Electric Supply Con- struction Company, including the basement. Alse the several rooms located on three separate floors used and occupied by the Case Library Association for its library, including the basement. Thereupon this writ is returned, fully executed. H. R., Deputy U. S. Marshal — ■■ — district of -. Fees; Service $2 oo Travel 12 Total $2 12 No. 167. Judgment of no Damages in Condemnation Proceedings (i). [Caption.'] This cause came on to b^ heard before the court and jury, duly impaneled, as recited above, to try the issues joined on the pleadings, the petition herein, the answer of certain of the heirs of Leonard Case, and the reply of The United States thereto, and, at the close of all the evidence, by direction of the court, the jury returned the following verdict : " We, the jury in this cause, being duly impaneled and sworn, do find for the plaintiff upon the issues joined between The United States and the heirs of Leonard Case. ISigned'] " John F. Blake, Foreman." CONDEMNATION PROCEEDINGS. 187 Whereupon it is considered and adjudged that the heirs of Leonard Case, made parties herein, have no interest in the premises known as Case Place, herein appropriated, and are entitled to no compensation therefor. (i) Costs can not be taxed against the United States in condemnation proceedings. Carlisle vs. Cooper, 64 Fed. Rep. 472, 12 C. C. A. 235. No. 168. Verdict for Damages Condemnation Prbceedifigs (i). \_Caption.] This day again came the parties, by their attorneys, and •also came the jury heretofore impaneled and sworn herein, and the jury retired to their room in charge of an officer of this court for further deliberation. And after due delibera- tion, they returned their verdict in writing to the court as fol- fows, to wit : " United States of America vs. Case Library, et al. Verdict. We, the jurors in this cause, duly impaneled and sworn, do assess to the several defendants hereto as the actual damages which will be caused to the property owned by them, or the interest in the property described in the petition filed herein, by reason of the appropriation of the same to the use of the government, as follows : ' I. To Case Library the full market value of the property owned by it, the sum of $510,000 00 Less amt. allowed L. Scofield, et al 6,064 29 $503,935 71 2. To Case Library for the cost of removing its books and furniture, aiid for damages to its books caused by such removal, the sum of $3, 1 70 00 3. To the Citizens Saving & Loan Association for loss and damage to its improvements and fix- tures, including cost of moving the sum of $17,464 50 1 88 SUITS AT LAW. 4. To the Citizens Saving & Loan Association for the loss which it will sustain by the appropria- tion of its leasehold estate to April ist, 1914, the sum of $20,342 50 5. To the Savings Building & Loan Company for loss and damage to its improvements and fix- tures, the sum of $1,645 °o 6. To the Savings Building & Loan Company for the loss which it will sustain by the appropria- tion of its leasehold estate to March 31, 1901, the sum of $800 00 7. To the Savings Building & Loan Company for the loss which it will sustain by the appropria- tion of its option for a leasehold estate from March 31, 1901, to March 31, 1906, the sum of $1,700 00 8. To C. H. Estinghausen for the loss and damage which he will sustain by the appropriation of his leasehold estate to April i, 1901, the sum of $580 00 9. To Levi T. Scofield, et al., for the loss and damage which they will sustain by the appropria- tion of their leasehold estate in said Case Library property, the sum of John Coon $1,376 79 L. T. Scofield 4,687 50 $6,064 29 10. To F. J. Wing for the loss and damage which he will sustain by the appropriation of his leasehold estate, the sum of $220 00 11. To the City of Cleveland for the loss and damage which it will sustain by the appropriation of the street known as Case Place, the sum of . . . . $1 00 John F. Blake, Foreman." Cleveland, Ohio, Dec. 6th, 1899. CONDEMNATION PROCEEDINGS. 189 And said verdict was read in open court, in the presence of said jurors when to which they gave their assent. (i) Taken from the record in Avery vs. U. S. 104 Fed. Rep. 711, 44 C. C. A. i6i. 190 SUITS AT LAW. DEPORTATION OF CHINESE. No. 169. Complaint for Deportation of a Chinese Person (i). United States of America, District of , City of and County of , ss. Before me, E. H., a United States Commissioner for the district of , at , personally appeared this day, S. R., who, being first duly sworn, deposes and says, that he is an officer of the United States, to wit, Chinese Inspector and Interpreter; that one Florence Doe is a Chinese manual la- borer and is now within the limits of the district of aforesaid, without the certificate of residence required by the Act of Congress entitled " An Act to prohibit the coming of Chinese persons into the United States," approved May 5th, 1892 and the Act amendatory thereof, approved November 3d, 1893. Wherefore, deponent prays that a warrant for the arrest of the said Florence Doe be issued, and that she be arrested and brought before the said United States Commissioner, and upon a hearing being had, that she be duly adjudged to be il- legally in the United States, and that the proper order for the deportation of the said Florence Doe be made and entered. S. R. Subscribed and sworn to before me, this day of , A. D. . E. H., United States Commissioner as aforesaid. (l) A complaint under oath to a United States commissioner is the proper method of instituting proceedings for deportation of a Chinese person. Chin Bak Kan vs. U. S. 186 U. S., 193 ; U. S. vs. Lee Yen Tai, 185 U. S., 213. Act of Sept. 13, 1888, Sec. 13, 25 Stat, at L. 476. DEPORTATION OF CHINESE. I9I As to procedure under this Act and earlier acts see U. S. vs. Long Hop, 55 Fed. Rep. 58. As to the amount of evidence necessary see U. S. vs. Williams, 83 Fed. Rep. 997 and U. S. vs. Fin Kwan, ioo Fed. Rep. 609, 40 C. C. A. 618. The pfoceedihg is not criminal in character. In re Tsu Tse Mee, 81 Fed. Rep. 562; U. S. vs. Hing Quong Chow, 53 Fed. Repi 233; ex parte Sing 82 Fed. Rep. 22. The laws and decisions telatihg to Chinese inimigration are elaborately- reviewed in a note to Act of May* S, 1892, 2 Supp. U. S. statutes 14, and in note to Act Nov. 3, 1893, 2 Supp. U. S. statutes 153; see also Act of iJuly 7, 1898, 30 Stat, at L. 750; and the Act of April 29, 1902, 57th Cong, session, i chap. 641. No. 170. Order Designating U. S. Commissioner to try Chinese Per- son (i). I hereby designate E. H., United States Commissioner for the. • district of , at -, before whom Y6e Ngoi, the Chinese person named in the foregoing complaint shall be taken for hearing. J. H., United States Attorney for the ^ District of . (i) This designation is usually endorsed on complaint made before the U. S. commissioner. No order of a judge is necessary to authorize com- missioner to act. U. S. vs. Lee Lip, 100 Fed. Rep. 842. Jfo. 171. Warrant of Arrest and Marshal's Return (i). Before E. H., United States Commissioner for district of , at . The President of the United States of America, to the Mar- shal of the United States for the -^ — District of -, and His Deputies, or any or either of Them, Greeting : Whefeas, complaint on oath of J. E., Chinese Inspector of the United States, has been made before me, that One Maty 192 SUITS AT LAW. Doe, a Chinese manual laborer, was on the day of , A. D., , found unlawfully within the limits of the United States, to wit, within the district of ; Now, therefore, you are hereby commanded to arrest the said Mary Doe and bring her before me, at my office, in room 87, in the United States Appraisers' Building, in the city of and county of , that she may then and there be dealt with according to law. Witness my hand at my office aforesaid this day of , A. D. . E. H., United States Commissioner for the District of , at . United States of America, District of . In obedience to the within warrant of arrest, I have the body of the within named Mary Doe, whose true name is Lee Ah Yin, before E. H., the United States Commissioner, who is- sued the same this day of , A. D. . Arrested at this day of . H. S., United States Marshal. By H. B., Office Deputy Marshal. (i) See note to No. 169. No. 172. Findings, Judgment, and Order of Deportation (i). Before E. H., United States Commissioner for the District of , at . United States of America vs. Lee Ah Yin. (Female.) A complaint verified by the oath of J. E., a United States officer, to wit, a Chinese inspector and interpreter, having been filed before me, the undersigned United States Commissioner, No. DEPORTATION OF CHINESE. 193 charging the said Lee Ah Yin with a violation of the Act of Congress of the United States, entitled " An Act to prohibit the coming of Chinese persons into the United States," ap- proved May 5th, 1892, and of the Act amendatory thereof, approved November 3d, 1893, and a warrant for the arrest of the said Lee Ah Yin having been issued by me thereon, and the said Lee Ah Yin having been duly apprehended upon the said warrant by the United States marshal for the dis- trict of , and brought before me for hearing upon said charge [the United States Attorney for the northern district of California having duly designated me as the United States Commissioner before whom said Lee Ah Yin should be taken for hearing] and the said Lee Ah Yin, having been duly informed by me of the charge against her and of her right to the aid of counsel, on the day of , A. D. , the said Lee Ah Yin being present in person and her attorneys, L. P. and S. M., Esquires, and United States Attorney M. B., Esq., appearing for the United States, this cause came on reg- ularly for hearing, and the same having been duly heard and submitted, and due consideration having been thereon had, I do find as follows : That the said Lee Ah Yin is a Chinese manual laborer, and was born in and is a subject of the Em- pire of China; that she was found within the limits of the United States, to wit, in the city and county of San Francisco, in the district of , on the day of , A. D. , and that when she was so found as aforesaid, she was without the certificate of residence required by said Acts ; and she has not clearly established, that by reason of accident, sick- ness, or other unavoidable cause, she has been unable to pro- cure such certificate. Now, therefore, in consideration of the premises aforesaid, it is ordered, adjudged, and decreed that the said Lee Ah Yin be deported from the United States to the country from whence she came, to wit, China. And it is further ordered that such deportation of the said Lee Ah Yin be made from the port of 194 SUITS AT LAW. , in the district of , and that she be hereby com- mitted to the custody of the United States marshal for the district of , to carry this order into effect. Witness my hand at my office, in the city and county of , in the district aforesaid, this day of , A. D. . E. H., United States Commissioner for the District of , at . (i) The order of deportation need only show that the person to be deported is adjudged to be unlawfully in the United States. In re Wong Fock, 8i Fed. Rep. 558; in re Gut Lun, 83 Fed. Rep. 141. As to the effect of finding of a commissioner see U. S. vs. Chung Fung Sun, 63 Fed. Rep. 261. No. 173. Petition for Appeal from Commissioner (i). United States of America, District of . Before the Honorable E. H., United States Commissioner. The United States of America, Plaintiff vs. Lee Ah Yin, Defendant The above-named defendant, Lee Ah Yin, conceiving her- self aggrieved by the order of deportation entered on the day of , in the above-entitled proceeding, by Honorable E. H., United States Commissioner aforesaid, which order of said commissioner does direct and provide that said defendant shall be deported to China, on the ground of her being now unlawfully within the United States, does hereby appeal from said order to the District Judge of the United States for the district of , and she prays that this, her appeal, may be allowed; and said defendant does hereby give notice to the plaintiff herein of such appeal, and that the same is now and DEPORTATION OF CHINESE. 195 hereby taken upon questions of both law and fact, and said defendant further prays that a transcript of the record and proceedings, papers and exhibits, upon which the said order was made, ^uly authenticated may be sent to the District Judge of the United States of the district of , in due course of procedure. Dated . Lee Ah Yin, Defendant and Appellant. R. Y., Attorney for Defendant and Appellant. ( I ) The appeal from a commissioner is to the district judge and not court, see Chow Loy vs. U. S., 112 Fed. Rep., 354, and must betaken within ten days from the conviction. Sec. 13 of the Act of September 13, 1888, 25 Stat, at Iv., 476; U. S. vs. See Ho How, 100 Fed. Rep., 730. The right of appeal is not taken away by subsequent legislation. U. S. vs. Wong Dep Ken., 57 Fed. Rep., 203. No. 174. Assignment of Errors on Appeal to District Judge. Before E. H., United States Commissioner for the - District of , at . United States of America vs. I No. Yee Ngoi (A Female). J First. E. H., United States Commissioner for the district of , at . California, had no power or author- ity to make, render or enter the judgment and order of de- portation herein. Second. Said judgment and order of deportation are void for want of jurisdiction. Third. The findings of said United States Commissioner that said defendant was a Chinese manual laborer and was 196 SUITS AT LAW. born in, and is a subject of, the empire of China are con- trary to and not justified by the evidence in this : ( i ) That there is no evidence that the defendant was born in China; (2) That the evidence showed that the defendant was born in the city and county of San Francisco, state of Cahfornia, United States of America, and that she is a citizen of the United States of America. Fourth. The judgment and order of deportation herein are contrary to and not justified by the evidence for the rea- sons assigned in the last foregoing assignment of errors. Fifth. The judgment and order of deportation are con- trary to law. Sixth. Said United States Commissioner erred in ren- dering and entering the judgment and order of deportation herein. Seventh. Said United States Commissioner erred in not ordering a dismissal herein. R. Y., Attorney for Defendant. •No. 175. Assignment of Errors on Appeal to District Court. Before Honorable E. H., United States Commissioner for the District of , at . The United States, Plaintiff and Respondent, ] vs. ' iNO. . Lee Ah Yin, Defendant and Appellant. j Now comes the defendant and appellant above-named and makes and presents the following assignment of errors, of and concerning the proceedings had and taken against said defendant, before the above-named commissioner, on the and day of , in the year , at , and there- upon defendant and appellant shows as follows: DEPORTATION OF CHINESE. 197 First. The said commissioner was and is without power, authority, or jurisdiction to hear and determine the said proceedings, involving the right of the appellant herein to be and remain in the United States, and that said commis- sioner had not power and authority to make, render, and en- ter the judgment and order of deportation against the de- fendant herein, and that said judgment and order are null and void. Second. That the Acts of Congress, known as the " Chi- nese Restriction and Exclusion Acts," of May 6th, 1882, July 15, 1884, September 13th, 1888, October ist, 1888, May 5th, 1892, and November 3d, 1893, in so far as they vest in a United States Commissioner any power or jurisdiction to hear and determine the right of a Chinese person, or a per- son of Chinese descent, to be and remain in the United States are unconstitutional and void. Third. That said Acts of Congress, in so far as they vest in a United States Commissioner the power and jurisdiction to hear or determine by summary proceedings, the right of a Chinese person, or a person of Chinese descent, who is a natural born^citizen and inhabitant of. the United States, and claims and asserts and sets up such citizenship as a, matter of right under the constitution and laws of the United States; or in so far as said Acts of Congress purport to or do confer upon such commissioner, the power or jurisdiction to deport or send out from the territory or jurisdiction of the United States, such person by any order or writ of deportation or other process whatever, are contrary to fundamental right and natural justice, and are in violation of the Constitution and laws of the United States, guaranteeing the civil rights of citizens and persons within the jurisdiction thereof, and particularly are in violation of Sections 9 and 10 of Article I., and Sections i and 2 of Article III., of the Constitution of the United States, and of Articles V., VI., and VIII. of the amendments to the Constitution of the United States. 198 SUITS AT LAW. Fourth. The said Acts of Congress, in so far as they vest in a United States Commissioner, or purport to or do grant to such commissioner, the power or jurisdiction to punish a Chinese person, or a person of Chinese descent, for being unlawfully in the United States, by summary proceed- ings, in which proceedings such person avers bona fide, and sets up in good faith, the fact and claim that he is a natural born citizen of the United States, and entitled to .the rights of such citizen under its Constitution and laws, are uncon- stitutional and void and contrary to the provisions and arti- cles of the Constitution of the United States above enumer- ated, and are in violation of the civil rights guaranteed by the Constitution and laws of the United States to citizens thereof residing therein. Fifth. The said Acts of Congress in so far as they vest in a United States Commissioner the power to hear and de' termine by summary proceedings the right of a Chinese per- son, or a person of Chinese descent, claiming in good faith and in point of fact to be a natural born citizen of the United States, to be and remain in the United States, and to con- vict such Chinese person, or person of Chinese descent, of being not lawfully entitled to remain in the United States, and to sentence such Chinese person, or person of Chinese descent, to imprisonment, detention, or restraint, or to de- portation, or to both, are unconstitutional and void, and vio- late the provisions of the Constitution and laws of the United States above referred to. Sixth. The said Actg of Congress, in so far as they vest in a United States Commissioner, or grant to a United States Commissioner the power, ^ythority or jurisdiction to hear and determine the right of a Chinese person, or a person of Chinese descent, to be and remain in the United States by summary proceedings, in which such person sets up and claims ■under the constitutional laws of the United States, to be a natural born citizen of the United States, and entitled as such DEPORTATION OF CHINESE. 199 to reside and remain therein, and in so far as said Acts of Congress purport to authorize said commissioner to adjudge such Chinese person, or person of Chinese descent, to be not lawfully entitled to remain in the United States, and to order such Chinese person, or person of Chinese descent, to be im- prisoned or to be deported or both, are unconstitutional and void, and violate articles and- provisions and sections of the Constitution and laws of the United States above enumerated and referred to. Seventh. That the said commissioner erred in overruling and denying the objection of the defendant herein, duly made at the inception of said proceedings, to the insufficiency of the complaint filed herein, as the basis of said proceedings, in that said complaint and the facts therein alleged were laid against a fictitious person, and against some person under a fictitious name, and not against the defendant herein, and that there- fore said complaint was and is null and void. Eighth. That the said commissioner er-red in overruling and denying the objection of the defendant herein, duly made at the inception of said proceedings, to the insufficiency of the warrant of arrest in this proceeding, in that the same was issued against a fictitious person, and against some person under a fictitious name, and not against the defendant herein, and that therefore the said warrant "was and is null and void. Ninth. The said commissioner erred in overruling and denying the objection of the defendant and appellant herein, taken prior to any proceedings before said commissioner, that the said complaint and warrant, and the filing and issuance thereof, had not been previously approved in writing by the United States attorney for the northern district of California, as required by law, and that therefore the said complaint and -warrant were insufficient, and not in the form of law, and null and void. Tenth. The said commissioner erred in refusing to grant and allow the continuance asked for by defendant, upon the 20O SUITS AT LAW. affidavit of counsel duly filed hprein, prior to any proceedings taken or testimony heard by said commissioner, and the rul- ing of said commissioner in this respect is here assigned as error. Eleventh. The said commissioner erred in refusing to grant the continuance asked for by counsel for the defendant in order to obtain evidence of the citizenship and nativity of said defendant, as appears on page 44 of the transcript of proceedings on file herein, and which ruling of said commis- sioner, defendant now assigns as error. Twelfth. The said commissioner erred in decisions of ques- tions of law arising upon the evidence heard and taken before said commissioner herein, and erred in decisions of law aris- ing upon the proceedings had and taken against said defend- ant affecting the material rights and interests of said defend- ant, as involved in said proceedings, to which said decisions and rulings of said commissioner the said defendant duly ex- cepted, and here assigns as error. Thirteenth. The finding of said commissioner that said de- fendant, Lee Ah Yin, is a Chinese manual laborer, and was born in and is a subject of the empire of China, is contrary to and not justified by the evidence herein ; in this, that there is no evidence that the defendant is a Chinese person ; that there is no evidence that the said defendant is a skilled manual laborer; that there is no evidence herein that said defendant is an unskilled manual laborer ; that there is no evidence here- in that said defendant is or was employed in mining, fishing, huckstering, or peddling; that there is no evidence that said defendant is or was a laundress; that there is no evidence herein that said defendant was engaged in taking and drying or otherwise preserving shellfish for home consumption or exportation; that the evidence herein clearly shows that the said defendant was born in the city and county of San Fran- cisco, state of California, United States of America, and that she is a citizen of the United States of America, and that any DEPORTATION OF CHINESE. 20I finding to the contrary by said commissioner upon said pro- ceedings is unwarranted in point of fact, and unauthorized and unjustified in point of law. Fourteenth. That the judgment and order of deportation of said commissioner herein made are contrary to and not jus- tified by the evidence, for the same reasons as are specified in the last assignment of error herein. Fifteenth. That said judgment and order of deportation made and entered herein by said commissioner are contrary to law. Sixteenth. That said judgment and order of deportation made and entered herein are in violation of the provisions of Sections i and 2 of Article III. of the Constitution of the United States and of Articles V. and VI. of the amendments thereof. Seventeenth. That for the reasons herein stated the said commissioner erred in making and entering judgment and order of deportation herein. Eighteenth. That for the reasons herein stated the said commissioner erred in not making and entering a judgment and order of dismissal herein. Wherefore, defendant and appellant prays: First. That said judgment and order of deportation of said commissioner be vacated and set aside, and that said defend- ant and appellant be hence dismissed. Second. That said matter and proceedings against said de- fendant and appellant be referred to said commissioner, or to a master in chancery of this court, for the purpose of taking further evidence on behalf of said defendant and appellant. Third. That said matter and charge against said defend- ant and appellant be heard and tried de novo in this the dis- trict court of the United States for the northern district of California. 202 SUITS AT LAW. Fourth. That said defendant and appellant have such other and further or different relief as may be proper. Dated . Respectfully submitted, R. Y., Attorney for Defendant and Appellant. No. 176. Citation on Appeal from Commissioner. Before Hon. E. H., United States Commissioner. The United States of America, Plaintiffs and Respondent, vs. Lee Ah Yin, Defendant and Ap- lant. To the United States of America, Plantiffs, and to Hon. J. H., United States Attorney for the District of , Greeting: You are hereby cited and admonished to be and appear at and before the District Court of the United States for the District of , on the day of , nine- teen hundred and , pursuant to an appeal filed in my office in the above entitled matter, wherein Lee Ah Yin is appellant and the United States is respondent, to show cause, if any there may be, why the order mentioned in said appeal should not be corrected, and speedy justice should not be done to the appellant in that behalf. Witness, the Hon. G. R., Judge of the District Court of the United States for the District of , this day of , in the year of our Lord nineteen hundred and . E. H., United States' Commissioner. DEPORTATION OF CHINESE. 2O3 Due service by copy of the within citation is hereby ad- mitted this day of . J. H., United States Attorney. No. 177. Certificate to Record by U. S. Commissioner. United States of America, District of , ss. I hereby certify that attached hereto are the following origi- nal papers filed in the case entitled in the caption hereof, viz. : Complaint, warrant of arrest, affidavits for continuance filed the day of and , respectively, notice of appeal and order allowing the same, citation on appeal to the United .States attorney, stipulation relative to filing upon appeal the original papers in the cause, stipulation relative to time of transcribing the papers on appeal; also, a full, true and cor- rect transcript of the proceedings and testimony had and taken before me upon the hearing thereof; also, a full, true and correct copy of the findings, judgment and order of de- portation. Witness my hand at my office this day of . E. H., United States Commissioner for the District of , at . No. 178. Decree Affirming or Reversing Order of Deportation (i). \_CapHon.j In this case, the appeal from the order of deportation made by the United States Commissioner, E. H., having been here- tofore submitted to the court for consideration and decision, now, after due consideration had thereon, it is by the court ordered that said order of deportation be, and the same is 204 SUITS AT LAW. hereby, affirmed [or, reversed and it is further ordered that the defendant be discharged]. (i) Where a person has been ordered to be deported in one district, cannot be tried again in another district. U. S. vs. Luey Guey Auck, 115 Fed. Rep. 252. It is entirely for the commissioner to determine the credibility of the witnesses and the sufficiency and weight of their testimony, and it is uni- formly held that his finding will not be disturbed unless clearly against the weight of evidence. Quock Ting vs. U. S., 140 U. S. 417, 11 Sup. Ct; 733, 35 L. Ed. SOI ; Elwood vs. Telegraph Co., 45 N. Y. 549, 6 Am. Rep. 140 ; Kavanaugh vs. Wilson, 70 N. Y. 177 ; Gee Fook Sing vs. U. S., i C. C. A. 211, 49 Fed. 147; in re Jew Wong Loy (D. C.) 91 Fed. 240; U. S. vs. Chung Fung Son (D. C.) 63 Fed. 261 ; Lee Sing Far vs. U. S. 35 C. C A. 327, 94 Fed. 834; in re Louie You (D. C.) 97 Fed. 580. No. 179. Order to Remand a Chinese Person on Petition for Writ of Habeas Corpus. In the District Court of the United States, District of . In the Matter of Lee Ah Chin, 1 on Habeas Corpus. J This matter having been regularly brought on for hearing upon the report of the special referee and examiner, it is by the court now here ordered and adjudged : That said report be, and the same is hereby confirmed, and it is adjudged and found that Lee Ah Chin, the person in whose behalf the writ of habeas corpus herein was issued came from China by the steamship Barton, and is a Chinese person forbidden by law to land within the United States, and has no right to be or remain therein. It is therefore ordered that the said above named person be remanded by the United States marshal for the dis- trict of , to the custody whence he was taken, to wit: On board the said steaihship to the custody of the master thereof, whoever he may be at the time of the order of re- mand, or to place the said above named person in the hands DEPORTATION OF CHINESE. 20$ and charge of any party on board said stea:mship for the time being representing the master, or then in charge of said steam- ship in the absence of the master, or for the time exercising control or authority thereon; this order to be executed as to said steamship, whether still in port not having departed therefrom, or having departed and returned since the proceed- ings herein were instituted. And in case said steamship has departed and not returned, or for any other reason the said above named person cannot be placed on said steamship, that the said marshal place him upon any other vessel available for the purpose, for the purpose of deporting him out of the United States and transporting him to the port of Hong Kong whence he came. And for the purpose of carrying this order into effect, it is further ordered that the said marshal take the said named person into custody and him safely keep till said order shall be fully executed. Entered this day of , 190 — . G. R., Judge. Office of the United States Marshal, District of . I hereby return that I executed the within order of remand on the day of , 190 — , by placing the within named Lee Ah Chin in the custody of G. R., from whose custody he was taken under and by virtue of a writ of habeas corpus heretofore issued by this honorable court in the within en- titled matter, as I am commanded to do in said within ordier of remand. S. M., United States Marshal. Dated at , day of , 190 — . No. 180. Writ of Deportation of Chinese (i). United States of America. In the District Court of the United States for District of . 206 SUITS AT LAW. • No. . Writ of Deportation. United States of America vs. Wah Jim, The President of the United States of America to the Marshal of the United States for the District of , Greet- ing: Whereas, at the July term of said court, held at the city of , in said district, on the day of , A. D. , Wah Jim was convicted of being a Chinese laborer unlawfully within the United States without a certificate of registration, committed within the jurisdiction of said court, contrary to the form of the statute of the United States in such case made and provided, and against the peace and dignity of the United States. And whereas, on the day of , A. D. , being a day in the said term of said court, the said Wah Jim was, for said offense of which he stands convicted as aforesaid, by the judgment of said court, ordered to be deported to the empire of China, the country from which he came. And this is to command you, the said marshal, to take, 'keep and safely deport the said Wah Jim to the empire of China by the usual route of travel without unnecessary delay, and make due return of your service of this writ. Herein fail not at your peril. Witness, the Hon. C. H., Judge of the said District Court, and the seal thereof, at the city of , the day of , A. D. . R. M., [Seal.l Clerk. (i) Usually a certified copy of the judgment is used as n process upon which the removal is made. Sec. 13 of the Act of September 13, 1888, 25 Stat, at L. 476. In some districts, however, the foregoing form of writ has been used. DEPOSITIONS. 207 DEPOSITION IN SUITS AT LAW AND IN EQUITY. No. 181. Notice of Deposition de bene esse. \Caption.'\ Y. & Y., Solicitors for Defendant. Please take notice that the plaintiff herein will take the testimony of E. F., G. H. and I. J., all of whom reside at the city of , and state of , and others, each and all of whom reside more than one hundred (100) miles from the place of trial herein, and more than one hundred (100) miles from any place at which a circuit court of the United States for the district of is appointed to be held by law, at the final hearing for use on behalf of the plaintiff, before J. N., Esq., a notary public in and for the county of , who is not of counsel nor interested in this cause, at the office of X. & X., at No. , street, in the city of , and state of , on the day of , at 11 o'clock a. m., and thereafter from day to day as the taking of the depositions may be adjourned ; and such testimony will be so taken in .accordance with the provisions of sections 863, 864, and 865 of the Revised Statutes of the United States and the equity rules. X. & X., Solicitors for Plaintiff, Dated at . No St., , (i) See R. S., Sees. 863,-864, and 865 ; Desty's Fed. Proc., Sees. 382,383, and 384, and cases there cited ; 70th Rule in Equity ; see also Foster's Fed. Prac., Sec. 280. 208 DEPOSITIONS. No. 182. Subpoena of Witness de bene esse. To G. H. Please take notice that you are required to appear before me at my office, number , street, in the city of , on the day of , at ten o'clock in the forenoon of that day, and there to be examined de bene esse on the part of the in the above entitled cause. You are required to be present to testify at the time and place above mentioned. Witness my hand and official seal at , this day of ■ J- N., [&a/.] [^Official title.^ No. 183. Caption for Depositions de bene esse. The United States of America, District of , State of , County of — —^ ss. The examination of witnesses de bene esse beginning on the day of -^ on behalf of the , before me, J. N., {offi- cial title), at my office at number , street, in the city of , in the said district of ,in the state aforesaid, in a certain suit now depending and undetermined in the district \or, circuit] court of the United, States for the district of [state place the court is held ^ in the district aforesaid, wherein A. B. is plaintiif, and C. D. is defendant. G. H., a witness produced on behalf of the plaintiff [or, de- fendant], being first duly sworn, deposes and says as follows: My name is G; H., age , and I reside at and am em- ployed, etc. \Continue with the deposition, which the witness must sign.\ DEPOSITIONS. 209 No. 184. Certificate at Close of Depositions de bene esse. State of , County of , ss. I, J. N., a notary public in and for said county and state [or, United States commissioner, or as may be\ duly commis- sioned and qualified, and authorized to administer oaths, and to take and certify depositions, do hereby certify that, pursu- ant to the annexed notice issued and served in the civil cause depending in the circuit court of the United States for the district of , wherein A. B. is plaintiff, and C. D. de- fendant, I was attended at my office. No. , street, in , by R. X., counsel for said plaintiff, as also by R. Y., counsel for defendant, on the several days and dates herein- before stated ; that the aforenamed witnesses, E. F., G. H., and J. S., who were of sound mind and lawful age, and were by me first carefully examined and cautioned and duly sworn to testify the truth, the whole truth, and nothing but the truth; and they thereupon testified as is above shown, and that the depositions by them subscribed, as above set forth, were reduced to writing by me (i) \_or, by the deponent in my presence] in the presence of the witnesses themselves, and from the statements of them, and were subscribed by the. said witnesses in my presence, and were taken at the place in the annexed notice specified and at the times as set forth, adjournments being had or taken from day to day as provided for in said notice, and that all was so done^ written and signed in the presence of said counsel for said plaintifj and defendant. I further certify that the reason for taking said depositions was, and is, and the fact was, and is, that all of the deponents live at , more than one hundred miles from the place where the said civil issue is appointed by law to be tried; that I am neither of counsel nor attorney to either of the parties to said suit, nor interested in the event of said cause, (2) and that it being impracticable for me to de- 2IO DEPOSITIONS. liver said depositions and the exhibits thereto attached with my own hand into the court for which they were taken, I have retained the same for the purpose of being sealed up and directed with my own hand, and speedily and safely trans- mitted to the said court for which it was taken, and to remain under my seal until there opened. (3) As witness my hand and seal as such examiner {^or as may be'] at , on this day of , 1894. J. N., [Seal.'] [OMcial title.] (i) Where depositions are taken de bene esse the certificate should state they were reduced to writing by the magistrate or by the deponent in his presence; Bell vs. Morrison, i Pet. 355; Cook i/j. Burnley, 11 Wall. 663 ; Donahue vs. Roberts, 19 Fed. Rep. 863 ; in re Thomas, 35 Fed. Rep. 822; MoUer vs. U. S. 57 Fed. Rep. 494, 6 C. C. A. 459; R. S. sees. 863-4-5. (2) Am. Nat'l Ech. Bk. vs. Nat'l Bk., 82 Fed. Rep. 961, 27 C. C. A. 74; Donahue vs. Roberts, 19 Fed. Rep. 863; Stewart vs. Townsend, 41 Fed. Rep. 121. (3) Stewart vs. Townsend, 41 Fed. Rep. 121; Egbert vs. Citz. Ins. Co., 7 Fed. Rep. 47. liTo. 185. Letters Rogatory (i). The United States of America, District of , ss. The President of the United States to any Judge or Tiribunal having jurisdiction of civil causes at Havana, Greeting: Whereas a certain suit is pending before us in which h. M. and J. T. are the claimants of the schooner P. and cargo, and the United States of America are the defendants ; and it has been suggested to us that there are witnesses residing within your jurisdiction without whose testimony justice can not completely be done between the said parties : We therefore request you that in furtherance of justice ypu will, by the proper and usual process of your court, cause DEPOSITIONS. 211 such witness or witnesses as shall be named or pointed out to you by the said parties, or either of them, to appear before you, or some competent person by you for that purpose to be appointed and authorized, at a precise time and place by you to be fixed, and there to answer on their oaths and affirmations to the several interrogatories hereunto annexed ; and that you will cause their depositions to be committed to writing and returned to us under cover, duly closed and sealed up together with these presents; and we shall be ready and willing to do the same for you in a similar case when required. lAdd teste. See Nos. 55 and 56.J (i) See R. S., sees. 875, 4071, 4074; Desty's Fed. Proc, sec. 394. Stein vs. Bowman, 13 Pet. 218 ; . HoUiday vs. Schultzeberge, 57 Fed. Rep. 660; Nelson vs. U. S. No. 101 16 Fed. Cas. ; Pet. C. C. 235; Bouvier's Law Die. Title " Letters Rogatory ; " i Greenleaf on evidence 320. NO. 186. Letters Rogatory (i). The United States of America, District of , ss. The President of the United States of America to the Presi- dent of the Court at , in the Kingdom of , Greeting : Whereas a certain suit is pending in our circuit court for the district of , in which A. B., as administrator of the estate of A. N., deceased, is plaintiff, and the C. D. Rail- road Company is defendant, and it has been suggested to us that justice can not completely be done between the said parties without the testimony of E. P., G. H., and I. J., all of whom reside at , within your jurisdiction: We therefore request you that in furtherance of justice you will, by the proper and usual process of your court, cause said E. P., G. H., and I. J. to appear before you, or some competent person by you for that purpose to be appointed and authorized, at a precisfe time and place by you to be fixed, 212 DEPOSITIONS. then and there to make answer on their oaths and affirmations to the several interrogatories hereunto annexed ; and that you will cause their depositions to be committed to writing and to be returned to us under cover, addressed to the clerk of the circuit court of the United States for the district of , at the city of , and state of , in the United States of America, duly closed and sealed up together with these presents ; and we shall be ready and willing to do the same for you in a similar case when required. lAdd teste. See No. 56.] (i) See note to No. 185. No. 187. Order for Dedimus Potestatem. On reading and filing affidavit of plaintiff's attorney and notice of motion, with proof of due service thereof on attor- neys for the defendant, A. R., who only has appeared herein, J. H., Esq., appearing-for the plaintiff, and R. Y., Esq., for the defendant, A. R.: It is on motion of J. H., Esq., United States attorney, ordered that a dedimus potestatem be issued in this cause out of this court, directed to the United States consul, and to such deputy or representative of said consul as may be au- thorized by him to act in his place and stead, at the follow- ing named places, respectively, viz.: [name them as'\ ToE. P., United States consul at Aix-la-Chapelle (Aachen), Germany, and his deputy or representative ; to examine the following named persons under oath as witnesses herein, viz. \name thein\ . It is further ordered that the examination above provided for shall take place during the months of and , and at such times within said months as is hereinafter desig- nated. DEPOSITIONS. 213. It is further ordered that either party to this action shalj have liberty to examine not only the witnesses herein named, but any other witnesses that either party may desire to ex- amine at the aforesaid places of [name them\, before either of the persons herein authorized to take testimony ; provided, however, that the names of said witnesses and their places of residence shall be given to the attorney of the opposite side in , before the day of , or such notice be given in Europe to the opposite counsel actin^]^ there for either party to this action in either of the aforesaid places of \iiame them\, where such other witnesses are to be examined, two days before such examination. It is further ordered that prior to , the attorneys for the respective parties shall give notice in , each to the other, of the names and European address for the last week in , of the counsel for the respective parties, who are to take testimony under this commission. It is further ordered that the examination of witnesses shall be had at the following places in the following order, and not otherwise, viz.: First at , next at , next at , etc.; that the examination shall commence at on the — day of , or within two days thereafter ; and that no examination shall be made of witnesses at any place after the examination has been finished at that place, or the exam- ination of witnesses commenced at another place. It is further ordered that the counsel for the plaintiff shall have with him, at any and all said examinations of said wit- nesses, or either of them, all the original invoices mentioned in the declaration herein, or copies or duplicates thereof, and which are in the possession of the plaintiff, and that counsel for defendant shall have full and free inspection thereof, and liberty to take copies of the same. It is further ordered that all directions herein contained as to time, place, order, and manner of examination of said witnesses may be changed or modified by the written consent of the counsel for the respective parties in Europe or in . 214 DEPOSITIONS. It is further ordered that the examination of all witnesses under this commission shall be oral, or taken by question and answer in the usual manner of taking oral depositions by examination, cross-examination, and redirect examination ; that the testimony given under such examination shall be reduced to writing, signed by the witnesses and certified by the commissioners respectively, and by them transmitted by mail to the clerk of this court at the city of , unless otherwise mutually agreed upon by said counsel for both parties. It is further ordered that all testimony taken under the commission provided for herein shall be taken subject to all legal objections at the trial of this action. G. W., Judge of the District [or, Circuit] Court for the District of . No. 188. Dedimus Potestatem (i). The United States of America, District of , ss. The President of the United States of America to J. N., Greeting : Know ye, that we, in confidence of your prudence and fidelity, have appointed you commissioner, and by these presents do give you [or, any two or more of you] full power and authority diligently to examine upon his [or, their respective] corporal oath [or, affirmation] before you to be taken, G. H. as witness on the part of plaintiff [or, defend- ant] in a certain cause now pending undetermined in the circuit court of the United States of America for the district of in the circuit, wherein A. B. is plain- tiff, and C. D. is defendant, touching the premises [or, if interrogatories are annexed, on the interrogatories hereunto annexed]. DEPOSITIONS. 215 And we do further empower you [or, any two or more of you] to examine on the same behalf, and in like manner, any other person or persons who may be produced as witnesses before you. And we do hereby require you [and any two or more of you] before whom such testimony may be taken, to reduce the same to writing, and to close it up under your hand and seal, directed to B. R., clerk of the circuit court of the United States, district of , city of ; and that you return the same when executed as above directed, an- nexed to this writ, with the title of the cause indorsed on the envelope of the commission, into the said circuit court, before the judge [or, judges] thereof, with all convenient speed. [Add teste. See No. 56.] (i) See R. S., sec. 866; Desty's Fed. Proc., sec. 385. As to taking de- positions under a commission see Giles vs. Paxson, 36 Fed. Rep. 882. No, 189. Commissioner's Return. [Caption.] United States of America, District of , ss. I, E. M., commissioner of the Circuit Court of the United States for the district of , named in the commission hereto annexed, do hereby certify that on the day of , at the city of , I was attended by R. X., coun- sel for A. B., and R. Y., counsel for E. F., opposing inter- venor, and by the witnesses W. S. and W. T., and the said witnesses, who were of sound mind and lawful age, having been by me first carefully examined and cautioned and sworn to testify the truth, the whole truth and nothing but the truth in the within entitled cause, gave their testimony, which by consent of counsel for the respective parties was taken down 2i6 DEPOSITIONS. by a stenographer appointed by me for that purpose, in the presence of the witnesses and from their statements, and the said stenographic notes were afterward reduced to writing by a typewriter, and the signatures of the witnesses to the same being waived by consent- of counsel for the respective parties. And I do further certify that I am not of counsel nor at- torney for either of the parties in the said commission named, nor in any way interested in the event of the cause named therein. In testimony whereof I have hereunto set my hand and seal this day of , A. D. 19 — . E. M., Commissioner. No. 190. Order to Show Cause why the Time for Taking Testimony should not be Extended (l). \Caption^ On reading the affidavits of S. D. and E. M., and on motion of R. Y., solicitor for defendant in the above-entitled suit, it is hereby ordered that copies of the same, with a copy of this order, be served on the solicitor for the plaintiff in the above suit on or before the day of , 1894, and that the said plaintiff show cause, if any he have, at , in the city of , on the day of , 1894, at 10 o'clock, a. m., why the time allowed for taking testimony on behalf of the defendant in the said cause should not be extended to and including the day of , 1894. (i) See 69th Rule in Equity. No. 191. Order Extending the Time for Taking Testimony. \Caption!\ On reading and filing the defendant's order to show cause, and the affidavits of S. D. and E. M. thereto annexed, and DEPOSITIONS. 217 after hearing R. X., Esq., for the plaintiff, and R. Y., Esq., for the defendant, it vis ordered that the time allowed for taking testimony on behalf of the defendant in the above-entitled cause, be extended to and including the day of , 1894, and that the plaintiff have days thereafter within which to take testimony in rebuttal. No. 192. Notice of Motion for Appointment of Special Examiner (i). R.Y., Solicitor for Defendant. Please take notice that at a stated \or, special] term of this court, to be held on the day of , 1894, at ■ \place of holding couri], the plaintiff in this cause will move at ID o'clock in the forenoon, or as soon thereafter as counsel can be heard, for an order that J. N., Esq., of , be ap- pointed special examiner herein, under the 67th Rule as amended, to take the deposition of witnesses in behalf of said plaintiff. X. & X., Dated . Solicitors for Plaintiff. Service accepted, etc. [as in A?^o. 75]. (i) See 67tli Rule in Equity, as amended May 3, 1892. Notaries public are authorized by statute to take depositions to be used in the courts of the United States. See 19 Stat, at L., 206 ; Desty's Fed. Proc^ Sees. 381 and 381a ; but there is some doubt whether a notary is authorized to take depositions under the 67th Rule in Equity unless by consent of counsel or appointment of court he is made a special examiner. 2i8 DEPOSITIONS. No. 193. Order Appointing Special Examiner. [^Caption J\ Upon reading and filing notice of motion, with admission of service, and on motion of R. X., solicitor for plaintiff \or, defendant], no one opposing, it is ordered that J. N., Esq., of , be and is hereby appointed special examiner, under the 67th Rule as amended, to take the depositions of wit- nesses on the part of the plaintiff [or, defendant] in this cause. No. 194. Order Appointing Special Examiner, under Equity Rule 67. [Caption.'] Upon reading and filing notice of motion for the appoint- ment of a special examiner herein with admission of service, it is ordered by the court that J. N., on account of his ex- perience in such matters, be and he is hereby appointed special examiner herein under the 67th rule as amended. The said special examiner shall take the testimony in behalf of both complainant and respondent and is authorized to take the riame in the district of , or elsewhere according to the convenience and requirements of parties. Said testimony shall be given orally by witnesses and be taken down sten- ographically by a skilled stenographer approved by the par- ties or appointed by the court, and thereafter reduced to typewriting and when subscribed by the witnesses and duly certified the same shall be admitted in evidence. Done at chambers in the city of , this day of . E. S., Judge. DEPOSITIONS. 219 No. 195. Notice of Oral Examination (i). [Caption^ Y. & Y., Solicitors for Defendant. Please take notice that the plaintiff in the above cause desires the evidence to be adduced therein to be taken orally under the 67th Rule in Equity, as amended; and you will further take notice that by an order made in said cause by J. N., Esq., one of the examiners of said court, the examination of witnesses on the part of the said plaintiff will take place before said examiner at , in the city of , on the day of , 1894, at 10 o'clock a. m., and proceed as the said examiner may direct. X. & X., Solicitors for Plaintiff. Dated . Service accepted, etc. \_as in No. 75]. (i) See 67th Rule in Equity, as amended, 149 U. S. NO. 196. Subpoena for W^itness. The United States of America, District of , ss. The President of the United States of America to the Mar- shal of the District of , Greeting : We command you to summon G. H., of , county of , district and state aforesaid, if he be found in your bailiwick, to be and appear before \name of court or exam- iner, or as many as may be\, at , on the day of , 1894, at 10 o'clock a. m., to give evidence on behalf of the plaintiff [or, defendant] in a suit pending in the district [ ■ .0 1) iJ > ., In Equity. No. . C. D., Defendant. J To the Honorable, the Judges of the District [or, Circuit] Court of the United States, in and for the District of . (i) It is the practice -witli many pleaders to preserve the name " complainant " in suits of equity, but the United States Supreme Court in promulgating the Rules in Equity use " plaintiflF, " with very few ex- ceptions, to designate the party bringing a bill in equity. No. 208. Commencement or Introduction (i). A. B., of , and a citizen of the state of , brings this, his bill, against C. D., of , a citizen of the state of , and inhabitant of the district of . And thereupon your orator complains and says: (i) This form is suggested by the United States Supreme Court. See 2oth Rule in Equity; Desty's Fed. Proc, p. 1146; Foster's Fed. Prac, Sec. 66 ; Beach's Modern Equity Prac, Sec. 88. The diversity of citizenship must affirmatively appear in the record. Grace vs. Insurance Co., 109 U. S. 283 ; Menard vs. Goggan, 121 U. S. 253 ; Tinsley vs. Hoot, 53 Fed. Rep. 682, 3 C. C. A. 612. It is the citizenship and not the residence of the parties that confers jurisdiction. Haskell vs. Bailey, 63 Fed. Rep. 873; Wolfe vs. Hartford Insurance Co., 148 U. S. 389. FORMAL PARTS OF A BILL. 229 No. 209. Commencement by One Plaintiff against Two or More De- fendants (i). [Caption.] A. B., a citizen of the state of , residing at , brings this, his bill, against C. D., a citizen of the state of , residing at , and E. F., a citizen of the state of , re- siding at , and inhabitants of the district of . (i) See note to No. 208. The citizenship of the parties on one side of the controversy must be different from that of each party on the other side of the controversy. See Smith vs. Lyon, 133 U. S. 319 ; The Sewing Machine Companies, 18 Wall. SS3 ; Tug River Coal & Salt Co. vs. Brigel, 67 Fed. Rep. 625, 14 C. C. A. 577- No. 210. Commencement by a Partnership against One Defendant (i). [Caption.] A. B., a citizen of the state of , residing at , in said state, and G. B., a citizen of the state of , residing at ', in said state, and S. B., a citizen of the state of , residing at , in said state, doing business in the city of , in the state of , under the firm name of A. B. & Company, bring this, their bill, against C. D., a citizen of the state of , residing at , in said state and an in- habitant of the district of . (i) See note to No. 208. The citizenship of the parties on one side of the controversy must be different from that of each party on the other side of the controversy. See Smith vs. Lyon, 133 U. S. 319; The Sewing Machine Companies, 18 Wall. SS3 ; Tug River Coal & Salt Co. vs. Brigel, 67 Fed. Rep. 625, 14 C. C. A. 577- The jurisdiction of a partnership depends upon the citizenship of the individual partners. Chapman vs. Barney, 129 U. S. 682; Carnegie, Phipps & Co. vs. Hurlbert, 10 U. S. App. 454, 53 Fed. Rep. 10. In Great Southern Fire Proof Hotel Co. vs. Jones, 177 U. S. 449, it was held that a Pennsylvania joint stock company must allege the citizenship of its several shareholders. .230 SUITS IN EQUITY. No. 211. Commencement by a Corporation against Individuals (i). \_Caption.] The A. B. Company, a corporation (2) organized under and by virtue of the laws of the state of , and citizen of said state, having its principal office at , brings this, its bill, against C. D., a citizen of the state of , residing at , and R. M., a citizen of the state of , residing at , and inhabitants of the district of . (1) See note to No. 208. Desty's Fed. Proc, sec. 26. (2) As to what is sufficient allegation of citizenship of a corporation see Ward' vs. Blake Mfg. Co., 56 Fed. Rep. 437, S C. C. A. 538 ; Express Co. vs. Kountze, 8 Wall. 351. As to what is insufficient averment of citizenship see Cameron vs. Hodges, 127 U. S. 322; Hambleton vs. Duham, 22 Fed. Rep. 465; Am. Sugar Refining Co. vs. Johnson, 60 Fed. Rep. 503, 9 C. C. A. no; Central Trust Co. vs. R. R. Co., 57 Fed. Rep. 3 ; Jackson vs. Twentyman, 2 Pet 136; N. Y. etc., R. R. Co. vs. Hyde, 56 Fed. Rep. "188, 5 C. C. A. 461. No. 212. Commencement by a Citizen against a County (i). [Caption.'] A. B., a citizen of the state of — —, residing at , in said state, brings this, his bill, against county, a cor- poration organized under the laws of the state of , and a citizen of said state and an inhabitant of the district of . (i) In Lincoln County vs. Luning, 133 U. S. 530, it is said: "With re- gard to the first objection, it may be observed that the records of this court for the last thirty years are full of suits against counties, and it would seem as though by general consent the jurisdiction of the Federal Courts in such suits had become established." See also Loeb vs. Columbia Town- ship, 91 Fed. Rep. 37, S. C. 179. U. S. 472- FORMAL PARTS OF A BILL. 23 1 No. 213. Commencement by a Citizen against a Township (i). ^Caption.] A. B., a citizen of the state of , residing at , brings this, his bill, against the trustees of the township of county, in the state of , a corporation organized under the laws of the state of , and a citizen of said state and an inhabitant of the district of . (i) That a township is a corporation, liable to be sued in the Circuit court, see Loeb vs. Columbia Township, 91 Fed. Rep. 37, S. C. 179 U. S. 472. See also Lincoln County vs. Luning, 133 U. S. S30. No. 214. Commencement by an Executor against a Corporation (i). [Caption.] A. B., a citizen of the state of , residing at , ex- ecutor- of the last will and testament of N. N., deceased, lately a citizen of the state of , residing at , brings this, his bill, against the C. D. Company, a corporation or- ganized and existing under and by. virtue of the laws of the state of , and having its principal office at , in the state of , and an inhabitant of the district of . (i) See note to No. 208. Desty's Fed. Proc, sec. 26.' The jurisdiction depends upon the citizenship of an executor or adminis- trator and not of the deceased, beneficiaries, heirs-at-law, or creditors. Hess. vs. Reynolds, 113 U. S. 73; Comstock vs. Herron, 55 Fed. Rep. 803; S C. C. A. 266; Amory vs. Amory, 95 U. S. 186; Coal Co. vs. Blatch- ford, II Wall. 172. No. 215 Commencement by the United States against a Corporation and Citizen (i). [Caption.] The United States of America, by J. W., its attorney gen- eral, brings this, its bill, against the C. D. Company, a cor- 232 SUITS IN EQUITY. poration organized under and by virtue of the laws of the state of , a citizen of said state, having its principal office at , and S. K., a citizen of the state of , residing at , inhabitants of the district of . (i) See note to No. 208. Desty's Fed. Proc, sec. 475. No. 216. Commencement by a Trustee of Bankrupt Debtor (i). iCaption.] A. B., a citizen of the state of , residing at , trus- tee in bankruptcy of the estate and effects of C. D., a citi- zen (2) of the state of , residing at , brings this bill against E. F., a citizen of the state of , residing at , and an inhabitant of the district of . (i) See note to No. 208. (2) Jurisdiction depends upon the citizenship of the bankrupt and not of the trustee in bankruptcy. Bankrupt Act of 1898, sec. 23. In other cases it is the citizenship of the trustee and not of the beneficiaries that confers jurisdiction. Dodge vs. TuUeys, 144 U. S. 456; Knapp vs. R. R. Co., 20 Wall. 117. No. 217. Commencement by Infants (i). ^Caption.] A. B. and C. B., citizens (2) of the state of , residing at , infants under the age of twenty-one years, by G. R., their next friend, bring this, their bill, against E. F., a citizen of the state of , residing at , and an inhabitant of the district of . (1) See note to No. 208. Eq. R. 87. (2) Jurisdiction depends on the citizenship of infants and not next friend or guardian. See Lamar vs. Micou, 112 U. S. 432; Blumenthal vs. Craig, 81 Fed. Rep. 320, C. C. A. ; Woolridge vs. McKenna, 8 Fed. Rep. 650; Voss vs. Neineber, 68 Fed. Rep. 947. FORMAL PARTS OF A BILL. 233 No. 218. Commencement by Lunatics, etc. (i). \_Caption.] A. B., a citizen of the state of , residing at , a lunatic (2) [or, non compos mentis'], by G. R., his guardian [or, next friend, when plaintiff is of unsound mind, hut not 'so found by inquisition] [or, committee of the (person and) estate of the said A. B.], brings this, his bill, against E. F., a citizen of the state of , residing at , and an inhabitant of the district of . Or, C. B., a citizen of the state of , residing at , and N. N., a citizen of the state of , residing at , committee of the [person and] estate of the said A. B., bring this, their bill, against E. F., a citizen of the state of , residing at , and an inhabitant of the district of . (i) See note to No. 208. Eq. R. 87. See also Bank vs. Richie, 8 Pet. 128. (2) Jurisdiction depends on the citizenship of the one who is non com- pos mentis and not the next friend, etc., Wiggins vs. Bethune, 29 Fed. Rep. ■SI- No. 219. Commencement by a Person Deaf and Dumb (i). [Caption.] A. B., a citizen of the state of , residing at , being deaf and dumb, by C. D., trustee, his next friend, brings this bill against E. F., a citizen of the state of , residing at , and an inhabitant of the district of . (i) See note to No. 208. Eq. R. 87. Jurisdiction depends on the citizenship of the person deaf and dumb, and not that of the next friend. 234 SUITS IN EQUITY. No. 220. Commencement of Wife as Feme Sole (i). l^Caption.'} A. B., a citizen of the state of. , residing at , the wife of C. B., residing at , suing as a feme sole [or, but who has obtained a statutory order for protection from her husband], the above named plaintiff, brings this, her bill, against E. F., a citizen of the state of , residing at , and an inhabitant of the district of . (i) See note. to*No. 208. Forms Fed. Proc. 38. As to when wife may sue alone. See Lorillord vs. Standard Oil Co., 2 Fed. Rep. 902; but see O'Hara vs. MacConnell, 93 U. S. 150; Taylor vs. Holmes, 14 Fed. Rep. 514. No. 221. Commencement by Wife Suing Alone (i). \_Caption.] A. B., a citizen of the state of , residing at , wife of C. B., a citizen of the state of , residing at , R. C.,. her next friend, brings this, her bill, against E. F., a citizen of the state of — >—, residing at , and an inhabitant of the district of . (i) See note to No. 208. Eq. R. 87. As to when wife may sue alone. See Lorillord vs. Standard Oil Co., 2 Fed.. Rep. 902. But see contra, Taylor vs. Holmes, 14 Fed. Rep. 514; O'Hara vs. MacConnell, 93 U. S. 150. No. 222. Commencement by Husband and Wife (i). {Caption. ] A. B. and C. B., his wife, citizens of the state of , re- siding at , bring this, their bill, against E. F., a citizen FORMAL PARTS OF A BILL. 235 of the state of , residing at , and an inhabitant of the district of . (i) See note to No. 208. " Where the wife complains of the husband and asks for relief against him she must use the name of some other person in prosecuting the suit ; but where the acts of the husband are not complained of, he would seem to be the most suitable person to unite with her in the suit. This is a mat- ter of practice within the discretion of the court." Mr. Justice McLean in Bein vs. Heath. 6 How. 228, 240. See also Douglas vs. Butler, 6 Fed. Rep. 228. No. 223 Commencement by Wife by Next Friend: Husband a De- fendant (i). \^Caption.'\ A. B., a citizen of the state of , residing at , wife of the defendant, C. B., by R. X., her next friend, the above named plaintiff, brings this, her bill, against C. B., her hus- band, a citizen of the state of , residing at , and an inhabitant of the district of . (i) See note to No. 208. Eq. R. 87. " Where the wife complains of the husband and asks for relief against him she must use the name of some other person in prosecuting the suit; but where the acts of the husband ar not complained of, he would seem to be the most suitable person to unite with her in the suit. This is a mat- ter of practice within the discretion of the court." Mr. Justice McLean in Bein vs. Heath, 6 How. 228, 240. See also Douglas vs. Butler, 6 Fed. Rep. 228. No. 224. Same: Husband Residing Abroad (i). [Caption.] A. B., a citizen of the state of , residing at , the wife of C. B., who is now residing at L., in the kingdom of E., out of the j'urisdiction of this honorable court, by R. X., 236 SUITS IN EQUITY. her next friend, brings this, her bill, against said C. B., a sub- ject (2) of the king of E., residing at . (i) See note to forms Nos. 208 and 223. (2) As to form of allegations of an alien see Stuart vs. Easton, 156. U. S. 46 ; Rondot vs. Rogers, 79 Fed. Rep. 676 ; 25 C. C. A. 145. No. 225. Commencement by an Alien against a Citizen (i). \_Caption.'\ A. B., a subject of the l.] (i) Must exceed $2,000, exclusive of interest and costs. See Act of March 3, 1887, as amended 1888, 25 Stat, at L. 433. BILLS IN SPECIAL CASES. 29 1 No. 285. For an Account of Partnership Dealings after a Dissolu- tion, and for a Receiver (i). \_Caption, address, and introduction.] That on or about , your orator A. B. and C. D., of, etc., the defendant hereinafter named, entered into copartnership together as attorneys and solicitors, your orator engaging to bring into the business the sum of dollars, aind being to receive one third part or share of the profits ; and the said C. D. engaging to bring into the business the sum of dol- lars, and being to receive two third parts or shares of the said profits. And your orator further shows unto your honors that your orator accordingly brought into the business the said sum of dollars, and that the said copartnership was carried on and continued until the day of , when the same was dissolved by mutual consent, and the usual advertisement of such dissolution was inserted in the , a paper published at , once a week for the period of weeks. And your orator further shows that the said copartnership business was carried on in an office building known as No. , street, which building, at the time of the dissolu- tion of the said copartnership, was held by the said defend- ant and your orator under an agreement for a lease for years from , and it was verbally agreed between the said defendant and your orator that the said defendant should take to himself the benefit of the said agreement, accounting to your orator for his proportion of the value thereof, and in pursuance of such agreement the said defendant has ever since continued, and now is in possession of the said house or building. And your orator further shows unto your honors that no settlement of the said copartnership accounts has ever been made between your orator and the said defendant, and that since the said dissolution your orator has repeatedly applied to the said defendant to come to a final settlement with re- spect thereto. And your orator well hoped that the said de- 292 SUITS IN EQUITY. fendant would have complied with such, your orator's reason- able requests, as in justice and equity he ought to have done. But now so it is, etc. \see No. 71], the said defendant abso- lutely refuses so to do. And your orator charges that the said defendant has possessed himself of the said copartner- ship books, and has refused to permit your orator to inspect the same, and has also refused to render to your orator any account of the copartnership moneys received by him. And your orator charges that he has, since the said dissolution, paid the sum of dollars in respect of the copartnership debts. And your orator further charges that upon a true and just settlement of said accounts it would appear that a consider- able balance is due from the said defendant to your orator in respect of their said copartnership dealings, which said sum or balance is at least the sum of dollars ; but nevertheless the said defendant is proceeding to collect in the said copart- nership debts, and to apply the same to his own use, which the said defendant is enabled to do by means of his possession of the books of account as aforesaid. And your orator charges that the said defendant ought to be restrained by the. injunc- tion of this honorable court from collecting in the said debts, and that some proper person ought to be appointed by this honorable court for that purpose. All which actings, etc. [See No. 229.] And that an account may be taken of all and every the said late copartnership dealings and transactions until the time of the expiration thereof, and tha^ the said C. D. may be direct- ed to pay to your orator what, if anything, shall upon such account appear to be diie from him, your orator being ready and willing, and hereby offering, to pay to the said C. D. what, if anything, shall appear to be due to him from the said joint concern. And that some proper person may be appointed to receive and collect all moneys which may be coming to the credit of the said late copartnership. And that the said C. D. may in the meantime be restrained by the order and in- BILLS IN SPEGIAt CASES. 293 junction of this honorable court from collecting or receiving any of the debts due and owing thereto. [And for further relief] May it please, etc. (i) Equity has practically exclusive jurisdiction in proceedings for an account and settlement of partnership affairs, including suits for an account and settlement between the partners themselves, suits for a settlement of firm affairs between the survivors and the personal rep- resentatives of a deceased partner, and suits to settle the affairs of an insolvent firm, and to adjust the demands of a firm's creditors, and the creditors of the individual partner. The equitable jurisdiction over partnerships is a necessary outgrowth of the jurisdiction over account- ing, and the remedies of dissolution, injunction, and receivership are incidents necessary to a final and complete relief. Pom. Eq. Jur., Sec. 142 1. Equity has jurisdiction of matters of account where the parties stand in a fiduciary relation to each other, and the account is so com- plicated that it can not be conveniently taken in a court of law. Pacific R. R. of Mo. vs. Atlantic & Pacific R. R. Co., 20 Fed. Rep., 277. Thus complicated accounts preliminary to a distribution of assets or division of profits are of equity cognizance. John Crossley Sons vs. New Orleans, 20 Fed. Rep., 352. The circuit courts have jurisdiction where ihe amount in controversy exceeds $2,000 exclusive of costs, and the parties are citizens of different states. See Act of March 3, 1887, 25 Stat, at Iv., 433 ; Desty's Fed. Prac, Sec. 84. No. 286. Foreclosure of Mortgage (i). [Caption and introduction.] That heretofore, to wit, on the day ol , in the year , the said C. D., defendant, being irrdebted unto your orator in the sum of (2), current money, and intending to secure the payment thereof unto your orator, did, by his deed of that date, convey unto your orator and 'his heirs cer- tain real estate lying in said county^ and particularly described in said deed, to which said deed there is a condition annexed that it be void on payment by said to your orator of the aforesaid sum of money, with interest thereon from , on or before the day of , in the year , as by a copy 294 SUITS IN EQUITY. of said deed filed herewith as a part of this bill will more fully appear. And your orator charges that no part of the aforesaid sum of money, or the interest accruing thereouj has been paid, but the same is still owing to him, although the time limited for the payment thereof by the condition aforesaid has passed, and payment thereof has been duly demanded of the said (3). To the end, therefore, that the said may answer the several matters and things hereinbefore stated, as fully and particularly as if they were herein again repeated, and he was thereunto specially interrogated (4) ; and that the premises aforesaid, or so much thereof as may be necessary, may be sold for payment of your orator's claim, with interest as afore- said; and that your orator may have such further or other relief as his case may require. May it please your honor to grant unto your orator the writ of subpoena against the said C. D., of , commanding him to appear in this court at some certain day to be therein named, and to answer the premises, and abide by and perform such decree as may be passed therein. R. X., Solicitor for Plaintiff. And your orator admits that the interest, which accrued due prior to and on the , has been paid to him by the said ; and he also admits the receipt of the further sum of , which was paid to him on the for further inter- est, and in part of the principal debt secured by said mortgage. But he insists that the residue of said debt, with interest accrued thereon since the last-mentioned day, is still due and owing to him. [Or as follows-] And your orator admits that sundry payments have been made to him by the said , on account of said mortgage, as is more particularly admitted in the statement marked Exhibit B, and filed as part of this bill; but by said statement it appears, and so. he insists, there is yet due to him on said BILLS IN SPECIAL CASES. 295 mortgage a balance of , besides interest thereon from the day of . (i) Equity deals primarily and almost exclusively with the mort- gagee. His interest in the mortgage is no longer an estate but a mere lien, an appendage of the debt, personal assets, a thing in action sign- able with the debt, but incapable of being separated from the debt and transferred by itself He has no legal remedy on the mortgage, and can enforce the lien against the land only in equity, as this is the pri- mary object of a foreclosure suit, which does not vest the title in the mortgagee, although it extinguishes that of the mortgagor by transfer- ring It to the purchaser at the judicial sale. Pom. Eq. Jur., Sec. 1190. Milf &Tyl, PI &Pr,p. 511. (2) Must exceed $2,000 to give circuit court jurisdiction. 25 Stat, at I,., 433 ; Desty's Fed. Proc, Sec. 84. (3) If paj'ments have been made on account, they should be admitted in the bill, either specially or by referring to some statement or account accompanying the bill as in the following forms. (4) A defendant is bound, upon a general interrogatory or prayer, to answer all the material averments in the bill fully and explicitly. In cases, therefore, where it is expected there will be no controversy about the facts, special interrogatories are not usually inserted. Where, however, the case involves many circumstances which rest in the knowledge of a suspected defendant, or where, from any cause, a full and minute discovery is desired from him, the interrogatories should be drawn as particular and searching as possible. No. 287. Bill to Foreclose a Railway Mortgage. [Caption.] To the Honorable the Judges of the Circuit Court of the United States for the District of Kansas, sitting in Equity : The Mercantile Trust Company, a corporation created by and existing under the laws of the state of New York, brings this its bill of complaint against the Missouri, Kansas and Texas Railway Company, a corporation created and existing 296 SUITS IN EQUITY. under and by virtue of the laws of the state of Kansas, and the Missouri Pacific Railway Company, a corporation existing under the laws of said state and of the state of Missouri, as hereinafter set forth. And thereupon your orator complains and says that the Mercantile Trust Company is a corporation created by and existing under the laws of the state of New York, and having its principal office for the transaction of its business in the city of New York in said state of New York, and is a citi- zen of said state of New York, within the meaning of the laws fixing and determining the jurisdiction of this honorable court. And yoiir orator further shows, upon its information and belief, that on and prior to the ist day of December, 1880, there existed a railroad corporation known as the Missouri, Kansas & Texas Railway Company, which was created a body corporate by the consolidation, amalgamation and pur- chase of the property and franchises of certain other corpora- tions, created by and existing under and by virtue of the laws of the states of Kansas and Missouri, and possessed of and endowed with powers, rights, privileges, franchises and im- munities granted by the laws of said states, and also by certain Acts of the Congress of the United States, and Acts of the Legislature of the state of Texas. That said Missouri, Kan- sas & Texas Railway Company owned and operated a num- ber of lines of railway situate in the states of Missouri, Kansas and Texas, and in the Indian Territory, with branches extending in various directions within such states and terri- tory, and then had and still has its principal office for the transaction of its business in the city of Parsons in the said state of Kansas ; and was and is a citizen of said state of Kan- sas, within the meaning of the laws fixing and determining the jurisdiction of this honorable court. And your orator further shows unto your honors that here- tofore and on or about the ist day of December, 1880, the BILLS IN SPECIAL CASES. 297 said Missouri, Kansas & Texas Railway Company, being thereunto duly authorized, by its president and secretary and under its corporate seal, made and executed its forty-five thousand bonds, known as general consolidated mortgage bonds, numbered consecutively from i to 45,000, both num- bers inclusive, each for the sum of $1,000, bearing date on said 1st of December, 1880, by the terms of which bonds the said company promised to pay to the holder of each bond, or in case the same should be registered, then to the registered owner thereof, the sum of $1,000, United States gold coin, of or equal to the then standard of value, at its financial agen- cy in the city of New York, forty years after the date of said bond, and also interest thereon at the rate of six per centum per annum, payable semi-annually, in like gold coin, on the 1st days of June and December in each year, on the presen- tation and surrender of the respective interest coupons an- nexed to said bonds at the financial agency aforesaid. And your orator further shows unto your honors that on or about said ist day of December, 1880, the said Missouri, Kan- sas & Texas Railway Company, being the owner of or hav- ing an interest in, by way of lease or otherwise, and being in possession of, the lines of railway and property therein de- scribed, did, in order to secure the payment of the principal and interest of the said issue of general consolidated bonds, as the same should mature, make, execute and deliver to your orator a certain deed or indenture of trust or mortgage, known as its general consolidated mortgage, whereby it conveyed to your orator as trustee, and its lawful successor or successors in the trust thereby created, and assigns, all the right of way and railroad and other property of the said Missouri, Kansas & Texas Railway Company particularly described in said mortgage, with the exceptions therein noted, which property is by said mortgage more particularly described as follows, to wit : " First. All and singular the railroad, as the same is con- 298 SUITS IN EQUITY. structed and operated, extending from Junction City, in Da- vis county, and state of Kansas, down the valley of the Neo- sho river, through the counties of Davis, Morris, Lyon, Cof- fee, Woodson, Allen, Neosho and Labette, to a point on the southern boundary line of said state, between the Neosho river and the western boundary of Labette county, a distance of one hundred and eighty-two miles, more or less. " And also all the right, title and interest which the party of the first part has, by reason of the construction of said line of road, to and in any land or lands heretofore conveyed by any Act of Congress to the state of Kansas to aid such con- struction, the said lands being the same, or so much thereof as remain unsold at the date hereof, which were granted by Acts of Congress to the state of Kansas, and by said state to the Union Pacific Railway, southern branch, as set forth in the said mortgage executed by the party of the first part to the Union Trust Company, bearing date February i, 1871, to which reference is hereby made, and also all the right, title and interest of the said party of the first part in and to the proceeds of such of said lands as may have been sold, which heretofore belonged to the said railway company, or in which the said company was in any way interested, and which are now unexpended and unapplied; and also all the right, title and interest of the said party of the first part in and to any proceeds of lands granted to the state of Texas by Act of Congress entitled ' An Act to appropriate the proceeds of the sale of public lands, and to grant pre-emption rights,' ap- proved September 4, 1841, and heretofore sold by ,said state, under and by virtue of an Act of the Legislature of the state of Kansas entitled ' An Act providing for the sale of public lands to aid in the construction of certain railroads, approved February 23, 1866; and also all the right, title and interest of the party of the first part in and to such of the lands granted by the Act of Congress aforesaid which were heretofore sold and conveyed by the state of Kansas to the Land Grant Rail- BILLS IN SPECIAL CASES. 299 way & Trust Company, and by said company to the party of the first part, together with all and singular the tenements, hereditaments, rights, privileges, easements, income, advan- tages and appurtenances to the said lands and premises belong- ing or in anywise appertaining, and the reversion and rever- sions, remainder and remainders, rents, issues and profits thereof; and also all the estate, right, title and interest, prop- erty, claim and demand whatsoever, at law or in equity, of the said party of the first part, of, in and to the same, and any and every part or parcel thereof situate in the state of Kansas. " Second. Also all and singular the said line of railroad, constructed and operated from the southern boundary line of the state of Kansas, southerly through the Indian Territory, to the southern boundary line of the state of Texas, to a point at or near the town of Denison, in said state, a distance of two. hundred and fifty miles, more or less, and also all the right, title and interest which the party of the first part now has or may hereafter acquire by reason of constructing the extension of the said line of railroad through the Indian Territory, in and to any lands granted by the Acts of Congress aforesaid, or which the said party of the first part now has or may here- after acquire under and by virtue of a treaty or treaties from any Indian nation or tribe, or otherwise, howsoever, apper- taining to the aforesaid extension, together with all the rights, privileges, tenements, hereditaments and appurtenances that may belong or appertain thereto ; the land granted under said Acts of Congress being ten alternate sections of land on each side of said railroad. " Third. All and singular the railroad, as the same is now constructed, extending from Sedalia, in Pettis county, in the state of Missouri, to the western boundary of said state, a dis- tance of one hundred miles, more or less, being the railroad acquired by the party of the first part by purchase from the Tebo and Neosho Railroad Company, as hereinbefore men- tioned. 300 SUITS IN EQUITY. " Fourth. All and singular the railroad which the party of the first part, acquired from the Labette and Sedalia Railway Company, which is now constructed from the town of Par- sons, in Labette county, in the state of Kansas, on the main line of the railroad of the party of the first part, northeasterly through Labette, Neosho, Crawford and Bourbon counties, to the boundary line, where the same intersects the railroad ac- quired by the said party of the first part from the Tebo and Neosho' Railroad Company as aforesaid, a distance of sixty- one miles, more or less. " Fifth. All and singular the railroad constructed from the town of Holden, on the Missouri Pacific Railroad, in the county of Johnson, state of Missouri ; thence into and through the municipal township of Camp Branch, and into and through the municipal township of Grand River, and into and through the corporate limits of the city of Harrisonville, in Cass county; and thence to the western boundary line of the state of Missouri, in the direction of the town of Paola, in the state of Kansas, a distance of about thirty-eight miles, subject to the existing lease thereof to the Missouri Pacific Railway Company, together with all lands, tenements and hereditaments acquired or to be acquired for rights of way for the said portion of railroad hereby conveyed, and all the ap- purtenances thereto belonging, and also all lands acquired and appropriated, or to be acquired and appropriated, for depots, superstructures, buildings, erections and fixtures on the said line of railroad, and all tracks, bridges, viaducts, culverts, fences and all houses and buildings thereon or appertaining thereto. " Sixth. So much of the line of railway heretofore belong- ing to the Neosho Valley and Holden Railway Company, and heretofore consolidated and made one corporation with and under the name of the party hereto of the first part, as ex- tends from the point on the eastern boundary line of the state of Kansas where the railway last above mentioned BILLS IN SPECIAL CASES. 3°^ crosses said boundary line from Cass county, Missouri, to the town of Paola, Kansas, a point on the line of said road dis- tant fifteen miles westerly from said boundary line, subject to the lease last aforesaid mentioned, together with all lands, tenements and hereditaments acquired or to be acquired for rights of way for the said portion of the railroad hereby con- veyed, and all appurtenances thereto belonging, and all lands acquired and appropriated, or to be acquired or appropriated, for depots, superstructures, buildings, erections and fixtures on the said line of railroad, and all tracks, bridges, viaducts, culverts, fences, and all houses and buildings thereon or ap- pertaining thereto. " Seventh. All and singular the railroad of the party hereto of the first part, now constructed and in operation, extending from Sedalia in the state of Missouri, northerly to Moberly in said state, a distance of seventy-two miles, being a part of the railroad of the Tebo and Neosho Railroad Company, con- veyed to the said party of the first part, more particularly described' in the first additional mortgage made by the party of the first part to the Union Trust Company, dated June i, 1872, to which reference is hereby made, together with all the rights, powers, privileges and franchises belonging or in any wise appertaining thereto. " Eighth. The entire railroad of and belonging to the said party of the first part, situate, lying and being and extending from its eastern terminus in the city of Hannibal in the state of Missouri, westerly through the counties of Marion, Ralls and Monroe, to the town of Moberly in the county of Ran- dolph, as the same has been heretofore and is now constructed, maintained and operated, being seventy miles in length. " And also all lands and real estate of every kind and na- ture, and wheresoever the same may be situate, of or belong- ing to the said party of the first part, and owned, used, occu- pied and enjoyed in the construction, maintenance and opera- tion of said last-described railroad, together with all depots, 302 SUITS IN EQUITY. station houses, freight houses, car houses, machine shops, cattle yards, all other buildings, erections, tenements, struc- tures and fixtures, and all machinery, tools, rails, ties, tracks, bridges, viaducts, culverts, fences, or other constructions or superstructures to the said railroad belonging or appertain- ing thereto. " All of the aforesaid described railroads taken together be- ing about seven hundred and eighty-six miles in length. " Any lands or land scrip certificates to which the party of the first part is or may hereafter be entitled, or shall re- ceive by reason of the construction of railroad in Texas, are not covered of this indenture or the lien thereof, but may be sold by said party of the first part, which party, however, here- by covenants to use the proceeds of any such sale strictly in payment of the interest or principal of the bonds issued under and secured by this indenture. " Ninth. And also all the following property, real and personal, now owned, or which may be at any time hereafter acquired, by the party of the first part, for the use of any or all of the railroads above described, namely, all the lands, tenements and hereditaments, and right of way, and all lands appropriated for depots, superstructures, buildings, erections and fixtures; and also all tracks, bridges, viaducts, culverts, fences and other structures, depots, engine-houses, car-houses, freight-houses, wood-houses, and other buildings; and all ma- chine-shops and other shops ; and also all locomotives, tenders, cars and other rolling-stock or equipments, and also all ma- chinery, tools, implements, fuel, supplies and materials for constructing, operating, repairing or replacing the said rail- roads, or any or either of them; and also all corporate and other franchises, powers, rights and privileges now held and owned by the party of the first part, pertaining to the said seven hundred and eighty-six miles of constructed road. " And whereas, the party of the first part, under and by BILLS IN SPECIAL CASES. SOJ virtue of the laws of the states of Kansas, Missouri and Tex- as, and the aforesaid Acts of Congress of July 25th and 26th 1866, is entitled to build or acquire by purchase, consolida- tion or otherwise, extensions and branches of its said road in the said states and in the Indian Territory. " And whereas, the party of the first part, under the Act of the Texas legislature passed August 2, 1870, is authorized to extend its railroad from its present terminus at Denison through the state of Texas to the Rio Grande river, with a view of extending the same to the City of Mexico, and has also the right to construct branches in the said state of Texas, by virtue of said last-mentioned Act, and the right to pur- chase joint stocks and unite or consolidate with any connect- ing railroad company with the approval and consent of a ma- jority in interest of the stockholders, and to acquire and merge into itself all or any part of the property, rights and privileges and franchises of such other company as therein provided. " And whereas, the said party of the first part has resolved to extend its line to the Rio Grande, either by direct or sole construction on its own account, or by joint construction or arrangement with other companies as may be found most ex- pedient, and likewise to build or acquire other branches and extensions in Texas and elsewhere. " And whereas, franchises pertaining to road not now con- structed are not embraced in the said mortgages of February I, 1871, and April i, 1876, which point has been adjudged and decided by the Circuit Court of the United States for the district of Kansas. " And whereas, to provide for the means for building and acquiring such branches and extensions, an issue of bonds, to be secured by this indenture, at thef rate of not exceeding twenty thousand dollars per mile of road, has been authorized 304 SUITS IN EQUITY. by the board of directors and by the stockholders of the party of the first part at the meetings hereinbefore referred to : " Now, therefore, the said party of the first part (in addi- tion to the seven hundred and eighty-six miles of road here- inbefore particularly described, in respect to which the said mortgages of February i, 1871, and April i, 1876, to the ex- tent of all valid and subsisting indebtedness thereunder, or authorized thereby, are prior in lien to this indenture) doth, by these presents, grant, bargain, sell, assign, transfer and convey unto the said party of the second part herein, all of its franchises under the said Texas Act of August 2, 1870, before referred to, in respect to the line of road to be con- structed or acquired from the existing terminus of its road at Densison to the Rio Grande, and all branches which it is au- thorized or may hereafter be authorized to construct in the state of Texas, and in the Indian Territory, and in the states of Missouri, Kansas and elsewhere, and all and singular its railroads and branches, to be constructed or acquired under its existing charters, constituent Acts, or any amendments there- of, and also including in the grant and conveyance herein and hereby made all roads now owned by it and all that it may hereafter own, whether built by itself or acquired by purchase, consolidation or otherwise, and all leasehold rights which may be acquired in other roads, under contracts for the sole or joint use thereof by the party of the first part, and also all the lands, tenements and hereditaments acquired or appro- priated, or which may hereafter be acquired or appropriated, for the purpose of a right of way for said railroad, its exten- sions and branches, and all .the easernents or appurtenances thereto belonging or in anywise appertaining, and all rail- ways, ways and right of way, depot grounds, tracks, bridges, viaducts, culverts, fences and other structures, depots, sta- tion-houses, engine-houses, car-houses, freight-houses, wood-ho.uses, warehouses, machine-shops, work-shops, super- BILLS IN SPECIAL CASES. 3O5 Structures, erections and fixtures, whether now held or here- after at any time acquired for the use of said railroad, its ex- tensions and branches, or in connection therewith, or the business thereof, also all locomotives, tenders, cars and other rolling-stock of equipments, and all rails, ties, chairs and ma- chinery, tools, implements, fuel and materials whatsoever, for or in respect of the constructing, operating, repairing or re- placing said railroad, or any part thereof, whether now held or owned or hereafter to be acquired by the said party of the first part, together with all the equipments or appurtenances whatsoever thereunto belonging, whether now held or here- after acquired, and all franchises connected with or relating to said railroad, its extensions and branches, or the construction, maintenance or use thereof, now held or hereafter acquired by the party of the first part, and all corporate franchises of any nature relating thereto, including the franchise to be a cor- poration and operate said railroad, which are now or may hereafter be possessed or exercised by the party of the first part, together with all and singular the endowments, income and advantages, tenements and hereditaments and appurte- nances to the above-mentioned railroad premises or property belonging or in anywise appertaining, and the reversion and reversions, remainder and remainders, tolls, incomes, rents, issues and profits thereto; and also all the estate, right, title, interest, property, possession, claim and demand whatsoever, in law as well as in equity, present or prospective, of the said party of the first part, or in and to the same and every part and parcel thereof, with the appurtenances." But your orator further shows unto your honors that it was expressly provided in and by said general consolidated mort- gage that while the bonds therein stated, issued under and by virtue of the mortgages made by the Union Pacific Railway Company, Southern Branch, on the 14th of November, 1868, to Russell Sage and N. A. Cowdrey, trustees, and in the mort- 306 SUITS IN EQUITY, gage made by the said Missouri, Kansas and Texas Railway- Company to the said Union Trust Company, dated Febru- ary I, 1 87 1, were outstanding and unpaid, the lands in said mortgages described, or any part thereof, might be sold in accordance with the provisions in said mortgages contained and the proceeds applied to the payment of the bonds secured thereby, the same as if the general consolidated mortagage had not been made. But that when the bonds secured by said two mortgages had been fully paid, retired or canceled, and the mortgages were satisfied, then and in such case all the provisions of the ninth article of the mortgage of February I, 1871, should be considered and taken to be a part of the general consolidated mortgage, as fully to all intents and purposes as if it had been incorporated therein, substituting, however, your orator or its successor in place of said Union* Trust Company. And your orator further shows that after said mortgage was made the Missouri, Kansas and Texas Railway Com- pany did construct and acquire certain lines of railroad int the state of Texas, and did expend and use in and about the construction and acquisition thereof large amounts of bonds secured by said general consolidated mortgage and proceeds of the sales of such bonds, and that the lines of railroad so con- structed and acquired, and which are hereinafter more partic- ularly mentioned, thereupon became and now are subject to the lien of the said last-mentioned mortgage. And your orator further shows unto your honors that a true and correct copy of the said general consolidated mort- gage is annexed to this bill of complaint and marked Exhibit "A," and your orator prays that the same may be taken as a part of this bill as fully as if embodied herein. That the exe- cution of said general cohsolidated mortgage to secure the payment of said issue of bonds was duly authorized by the board of directors of the said railway company and was fur- BILLS IN SPECIAL CASES. 307 ther authorized by the stockholders of said railway company at two several meetings held respectively on the 19th of May, 1880, and the 17th day of November, 1880. That said gen- eral consolidated mortgage was duly executed, acknov/ledged and recorded as required by law. And your orator further shows unto your honors that it was provided and covenanted in by said general consolidated mortgage that of the bonds authorized to be issued as afore- said, and when issued to be secured by the provisions of said mortgage, bonds numbered from i to 18,217, t)0th numbers inclusive, should be certified by the trustee thereunder, or its successor or successors in said trust, only in exchange for outstanding issues of bonds under prior mortgages which were a lien upon the said railroad of the said party of the first part thereto, or upon some part thereof. And your orator further shows unto your honors that of the bonds so authorized to be issued as aforesaid»and num- bered from I to 18,217, both numbers inclusive, no bonds have been certified and delivered by your orator as trustee under said mortgage, and none of such bonds are now actually issued and outstanding. And your orator further shows unto your honors that in and by section sixth of said general consolidated mortgage it was provided that bonds numbered from 18,218 to 28,217, both numbers inclusive, amounting in the aggregate to $10,- 000,000, were set apart and reserved for retiring upon such plan and terms as should be adopted by the board of directors of the said railway company, the income bonds issued or which might be issued under the mortgage of April i, 1876, made by said railway company to the Union Trust Company as trustee, and the coupons and scrip certificates representing interest accrued upon such bonds. And your orator further shows unto your honors that by the terms of a resolution of the board of directors of the said 3°^ SUITS IN EQUITY. railway company, passed in pursuance of the provisions of said section sixth, it was provided that the bonds issued in exchange for such income bonds, coupons and scrip certifi- cates should bear interest at and after the rate of five per cerit. per annum. And your orator further shows unto your honors that of the bonds so authorized to be issued by said section sixth, bonds numbered from 18,218 to 27,591, both numbers in- clusive, amounting in the aggregate to $9,374,000, have been actually issued and are now outstanding in the hands of bona fide holders theKeof. And your orator further shows unto your honors that by the terms of said general consolidated mortgage it was pro- vided that bonds numbered from 28,218 to 30,217, both num- bers inclusive, amounting in the aggregate to $2,000,000, might be issued and used for the purpose of providing for new equipment and rolling-stock. And your orator further shows unto your honors that by the terms of said general consolidated mortgage it was fur- ther provided that the remaining bonds numbered from 30,- 218 to 45,000, both numbers inclusive, were to be issued and used in securing the construction and acquisition of exten- sions and branches of said railway in the states of Missouri, Kansas, Texas and the Indian Territory, and elsewhere. And your orator further shows unto your honors that it was provided in and by said general consolidated mortgage that the said railway company might, upon the conditions therein set forth, issue bonds to be secured by said mortgage, in addition to the $45,000,000 of bonds provided for therein, at the rate per mile specified in said mortgage. And your orator further shows unto your honors that by virtue of the covenants and provisions of said general consol- idated mortgage, and under the authority therein granted, the said railway company has made, issued, executed and deliv- BILLS IN SPECIAL CASES. 3O9 ered, and your orator as trustee under said mortgage has cer- tified and delivered, bonds numbered from 28,218 to 46,496, both numbers inclusive, amounting in the aggregate to $18,- 278,000, all of which are now actually outstanding in the hands of bona Ude holders thereof. And your orator further shows unto your honors that in accordance with the action in that regard contemplated by said general consolidated mortgage, and in order to better carry out the intention thereof and the intention of the pro- visions therein contained, the said railway company has made, executed and delivered to your orator, as trustee, certain sup- plemental mortgages as follows: First. A mortgage dated the ist day of March, 1882, wherein and whereby it conveyed to your orator, upon the conditions and covenants contained in said general consoli- dated mortgage, the property in said supplemental mortgage described. A true and correct copy of said supplemental mortgage is annexed to this bill of complaint and marked Exhibit " B," and your orator prays that the same may be taken as a part o£ this bill as fully as if embodied herein. Second. A mortgage dated the ist day of December, 1886, wherein and whereby it conveyed to your orator, upon the conditions and covenants contained in said general con- solidated mortgage, the property in said supplemental mort- gage described. A true and correct copy of said supplemental mortgage is annexed to this bill of complaint and marked Exhibit " C," and your orator prays that the same may be taken as a part of this bill as fully as if embodied herein. Third. A mortgage dated the ist day of December, 1887, wherein. and whereby it conveyed to your orator, upon the conditions and covenants contained in said general consoli- 3IO SUITS IN EQUITY. dated mortgage, the property in said supplemental mortgage described. A true and correct copy of said supplemental mortgage is annexed to-this bill of complaint and marked Exhibit " D," and your orator prays that the same may be taken as a part of this bill as fully as if embodied herein. And your orator further shows that said railway company, in and by said general consolidated mortgage, expressly grant- ed, bargained, sold, assigned, transferred and conveyed to your orator, in addition to the property herein particularly described, all and singular its railroad and branches, to be constructed or acquired under its existing charters, constitu- ent acts or any amendments thereof, and also including in the grant and conveyance therein and thereby made all roads then owned by it or all that it might thereafter own, whether built by itself or acquired by purchase, consolidation or other- wise, and also all leasehold rights which might be acquired in other roads, and all rights acquired, or to be acquired, in other roads under contract for the sole or joint use thereof by the said railway company, and that the said railway com- pany thereby agreed to execute and deliver to your orator, as trustee, or its successor or successors, any further reasonable and necessary trust deed, to bring in and make subject to the conditions of said mortgage every such extended or future- acquired road, and evei-y other land and property, real or personal, that might thereafter be acquired by it, for the pur- pose, and with the intent, of securing the payment of the bonds, composing every increased issue, as well as the bonds therein described, equally and alike upon the property of the said railway company, and the interest due, and to grow due thereon, in the sam^ manner as if said bonds had been orig- inally secured by one and the same indenture. And your orator further shows unto your honors, upon its information and belief, the said defendant, the Missouri, Kan- BILLS IN SPECIAL CASES. 3II sas and Texas Railway Company, since the execution of the said mortgage, has acquired, as absolute owner thereof, nine- ty-seven thousand, two hundred and eighty- four shares of the capital stock of the International and Great Northern Rail- road Company, a corporation organized and existing under the laws of the state of Texas. And your orator further shows unto your honors that on or about the ist day of June, 1881, the said International and Great Northern Railroad Company, being thereto duly au- thorized, made, executed and delivered to the defendant, the- Missouri, Kansas and Texas Railway Company, a certain in- denture in the nature of a lease, wherein and whereby it leased to the said Missouri, Kansas and Texas Railway Company all its property, the railroad and branches of the said Inter- national & Great Northern Railway Company in the state of Texas as therein particularly described, to which said inden- ture of lease or a copy thereof, when produced, your orator begs leave to refer for the contents thereof, as fully as if the same had been embodied and made part of this bill. And your orator further shows unto your honors that your orator is informed and believes that by the intention and oper- ation of the terms and covenants contained in said general consolidated mortgage the said shares of the capital stock of the said International & Great Northern Railway Com- pany, and all right, title, interest, claim, property or posses- sion to the said Missouri, Kansas & Texas Railway Company acquired in, under and by virtue of the ownership of said shares of the capital stock, and in, under or by virtue of said indenture of lease dated the ist day of June, 1881, immedi- ately became and was and continued to be subject to the lien of said general consolidated mortgage, and became and was a part of the property which was pledged by operation of said general consolidated mortgage with your orator, as a further 312 SUITS IN EQtflTY. security for the payment of the principal and interest of the issue of bonds thereby secured. And your orator further shows unto your honors that the said Missouri, Kansas & Texas Railway Company, since the date of the said general consolidated mortgage, has acquired by purchase, lease, or contract in the nature of lease, or by construction or otherwise, divers other lines of railway and other appurtenant property, situated in the state of Texas and the Indian Territory, which said lines of railway, as your orator is informed, have become aind now are subject to the lien of said mortgage as a first and paramount charge or in- cumbrance, and which said lines are situated and extend sub- stantially as follows, to wit : A line of railway from Denison to Greenville, 94 miles; from Denison to Gainesville, 50.20 miles; from Greenville to Mineola, 162.53 miles; from Echo to Belton, 7.15 miles; from Jefferson to McKinney, I55.'50 miles; from Trinity eastwardly 67 miles; from Whitesboro southerly by way of Denton, Fort Worth, Hillsborough and Waco to Taylor, a distance of about 233.5 miles; from Dallas to Denton, 39 miles ; from Taylor to the line of Colorado county, and from, San Marcos to Lockhart, a distance of 102.75 miles; from Dallas to Greenville, 52 miles ; from Gainesville . to Henrietta, 70 miles; and as your orator is informed and believes, also a line of railway from, at or near Bastrop to Lagrange, the length of which is unknown to your orator; and also branch lines in the Indian Territory of a total length of 13.80 miles, which, as your orator is informed and believes, extend from Atoka and McAllister, in said territory, to the coal mines in the neighborhood thereof. That the line of road from Taylor to Bastrop and from San Marcos to Lockhart, fifteen miles, and from at near Bas- trop easterly and to near Lagrange, was purchased by the BILLS IN SPECIAL CASES. 3I3 Missouri, Kansas & Texas Railway Company from the Tay- lor, Bastrop & Houston Railway Company. And your orator further shows unto your honors that in and by the terms of the resolution of the board of directors of the said defendant,* the Missouri, Kansas & Texas Railway Company, hereinabove referred to, and under and by virtue of all the bonds issued under said general consolidated mort- gage, bearing interest at five per cent, per annum and issued in exchange for income bonds, scrip and coupon, it was fur- ther provided that all the income bonds received in exchange for the new five per cent, bonds and the coupons and scrip so received in exchange for five per cent, bonds should be de- posited with your orator as trustee and held uncanceled as se- curity for the new bonds until all the income bonds had been retired. And your orator further shows unto your honors that un- der and by virtue of the terms of said resolution your orator has received and now holds uncanceled for the security of the new bonds, until all the income bonds have been exchanged, dollars in par of said income bonds with coupons there- on from and after the coupon dated , and coupons and scrip certificates detached from said bonds to the amount of dollars. And your orator further shows unto your honors that cer- tain portions of the railroad owned by said railway company were at the time of the execution and delivery of said general consolidated mortgage incumbered by one or more mortgages or deeds of trust, made, executed and delivered by the defend- ant railway corporation, or by the respective corporations which owned said lines or portions of said railroad, prior to the time of the acquisition thereof by said Missouri, Kansas & Texas Railway Company. That the mortgages or deeds of trust which at the time of the execution and delivery of said general consolidated mort- 314 SUITS IN EQUITY. gage were liens upon portions o£ the railway and equipment conveyed thereby are substantially as fallows : First. A mortgage from the United Pacific Railway Com- pany (Southern Branch) to Russell Sage and N. A. Cowdrey, trustees, dated the 14th day of Novenfber, 1868, and bonds secured thereby to the amount of about $2,067,000 are now outstanding. The said mortgage conveys the line of railroad therein mentioned and certain equipment appertaining there- to. And your orator refers to said mortgage, if and when the same shall be produced, for a full description of the prop- erty covered thereby. Second. A mortgage made by the Tebo & Neosho Rail- way Company to the Union Trust Company of New York, as trustee, dated ist day of June, 1870, and bonds secured there- by to the amount of about $347,000 are now outstanding. The said mortgage conveys the line of railroad therein mentioned and certain equipment appertaining thereto. And your ora- tor refers to said mortgage, if and when the same shall be produced, for a full description of the property covered thereby. Third. A mortgage made by the Missouri, Kansas & Tex- as Railway Company to the Union Trust Company of New York, as trustee, dated ist day of February, 1871, and bonds secured thereby to the amount of about $10,492,000 are now outstanding. The said mortgage conveys the line of railroad therein mentioned and certain equipment appertaining thereto. And your orator refers to said mortgage, if and when the same shall be produced, for a full description of the property covered thereby. Fourth. A supplemental mortgage made by said Missou- ri, Kansas & Texas Railway Company to the said Union Trust Company, dated ist day of June, 1872, and bonds se- cured thereby to the amount of above $2,498,060 are now out- standing. The said mortgage conveys the line of railroad BILLS IN SPECIAL CASES. ^1$ therein mentioned and certain equipment appertaining there- to. And your orator refers to said mortgage, if and when the same shall be produced, for a full description of the prop- erty covered thereby. Fifth. A supplemental mortgage made by the said Mis- souri, Kansas & Texas Railway Company to the Union Trust Company of New York, as trustee, dated the ist day of No- vember, 1872, and bonds secured thereby to the amount of about $1,182,000 are now outstanding. The said mortgage conveys the line of railroad therein mentioned and certain equipment appertaining thereto. And your orator refers to said mortgage, if and when the same shall be produced, for a full description of the property covered thereby. Sixth. A supplemental mortgage made by the Missouri, Kansas & Texas Railway Company to the Union Trust Com- pany of New York, as trustee, dated the ist day of June, 1873, and bonds secured thereby to the amount of about $677,- 000 are now outstanding. The said mortgage conveys the line of railroad therein mentioned and certain equipment ap- pertaining thereto. And your orator refers to said mortgage, if and when the same shall be produced, for a full descriptiori of the property covered thereby. Seventh. A mortgage from the said Missouri, Kansas & Texas Railway Company to the Union Trust Company of New York, as trustee, dated the ist day of April, 1876, which said last-mentioned mortgage is known as the " second " or " income mortgage," and bonds secured thereby to the amount of about $705,000 are now outstanding. The said mortgage conveys the line of railroad therein mentioned and certain equipment appertaining thereto. And your orator refers to said mortgage, if and when the same shall be pro- duced, for a full description of the property covered thereby. And your orator further shows unto your honors that on or about the ist day of December, 1880, by an indenture or 3l6 SUITS IN EQUITY. agreement dated on that day, made between the said Missouri, Kansas & Texas Railway Company and the Missouri Pacific Railway Company, said Missouri, Kansas & Texas Railway Company leased, demised and to farmletted unto the Mis- souri Pacific Railway Company its line of railway from Hannibal, in Marion county, Missouri, on the Mississippi river, via Moberly, Sedalia and Ft. Scott, to Parsons in La- bette county, Kansas, three hundred and one miles, more or less, and also a line of railway from Junction City, in Davis county, Kansas, to the town of Parsons, in Labette county, Kansas; and thence extending southerly through the Indian Territory to the town of Denison, in Grayson county, Texas, four hundred and thirty-one miles, more or less; and also a line of road from Denison, in Grayson county, Texas, south- easterly to the town of Greenville, in Hunt county, Texas, a distance of fifty-two miles, more or less; and also a line of road extending from said town of Denison westerly to Gainesville, in Cook county, Texas, forty-two miles, more or less, to and for the full end and term of ninety-nine years from the date of said indenture of lease, fully to be completed and ended. And your orator further shows unto your honors that in and by the terms of said lease it was made expressly subject and inferior to the lien of the existing mortgages upon the property of said railway company, and especially to the lien of the general consolidated mortgage executed as aforesaid by the Missouri, Kansas & Texas Railway Company to your orator as trustee. And your orator further shows unto your honors that said lease was intended to and by its terms did extend to and cover, subject as aforesaid to the lien of the mortgages executed by the Missouri, Kansas & Texas Railway Company, any ex- tensions or further constructed railway of said Missouri, Kansas & Texas Railway Company. BILLS IN SPECIAL CASES. 31/ And your orator is informed and believes, and therefore shows unto your honors, that the said Missouri Pacific Rail- way Company has, or claims to have, by virtue of said lease, some claim in and to or lien upon the railway of said Mis- souri, Kansas & Texas Railway Company, which lien or claim, if any it has, is subject and inferior to the lien of the general consolidated mortgage so as aforesaid executed and delivered to your orator. And your orator further shows unto your honors that on the 1st day of June, 1888, there became due and payable and accruing upon the bonds secured by said general consolidated mortgage, and then actually outstanding, the semi-annual instalment of interest, evidenced by the coupons attached to said bonds, amounting to the sum of $771,645. That default ■was made in the payment of the interest on said bonds and said instalment of interest accruing on said bonds as afore- said. That the said Missouri, Kansas & Texas Railway Com- pany wholly failed, omitted and refused to pay the said in- stalment of interest and to pay the interest mentioned and provided for in the said coupons due on said last-mentioned day, or upon any of them, but therein wholly made default; that a large number of said coupons, representing interest due and payable upon the said ist day of June, 1886, were on that day actually presented for payment at the place where the same were and are payable, to wit, at the financial agency of the said Missouri, Kansas & Texas Railway Company in the city of New York, and payment thereof was demanded and refused. And your orator shows further that on said 1st day of June said railway company also made default in payment of interest then due on bonds secured by mortgage hereinbefore mentioned, known as the Tebo & Neosho rnort- gage, and which constitutes a lien on part of the property covered by said general consolidated mortgage. And your orator further shows unto your honors that the 3l8 SUITS IN EQUITY. holders of a large amount in value of said general consoli- dated mortgage bonds now actually outstanding have in writ- ing requested your orator to enforce the remedies provided in said mortgage or deed of trust. And your orator further shows unto your honors that it is informed and believes that said railway company is insolvent and unable to pay its floating debt and current and presently accruing indebtedness, and the taxes which have been levied and assessed upon the property of said railway company by the municipal and state authorities, or some of them, having authority to levy and assess such taxes, and that some portion at least of the property of said railway company covered by said mortgage has been advertised for sale as required by law in order to meet the payment of such taxes so levied and as- sessed upon its property and in default. That as your orator is informed and believes there will presently become due a large amount on account of wages, labor and current expenses of said railway company, which the said railway company is wholly unable to pay, and that the mortgaged property is insufficient and inadequate security for the payment of the outstanding bonds secured by said general consolidated mortgage after providing for the pay- ment of liens prior thereto and of preferred claims. That there is great danger that the property of said defend- ant railway company, or some part of it, may be sold in order to pay the taxes so levied and assessed upon it, and which are now in default, or that judgments may be recovered against it for the floating indebtedness now due or which will shortly become due, and that the property of said railway company may be sold under such judgments so to be recovered as aforesaid, and that the property and lines of said Mis- souri, Kansas & Texas Railway Company may be separated and broken up and the earning capacity of said lines destroyed or greatly impaired by the contests of creditors having con- flicting claims. BILLS IN SPECIAL CASES. 3 19 And your orator further shows unto your honors that no proceedings at law have been had, nor any suit or action com- menced, by or on behalf of your orator, or any holder of any of the bonds of the said company, secured by the mortgage aforesaid, for any interest unpaid or accrued thereon, except only this action. In consideration whereof, and for as much as your orator is remediless in the premises, at and by the strict rules of the common law, and are only relievable in a court of equity, where matters of this kind are properly recognizable and re- lievable. Your orator therefore prays the aid of this honorable court, and that the said mortgage or deed of trust may be de- creed to be a lien upon all the property, real, personal or mix- ed, rights, franchises, lands, land grants, titles, railroads, branches and extensions of the said Missouri, Kansas & Tex- as Railway Company, described in the said mortgage or deed of trust, within the jurisdiction of this honorable court, and that the said Missouri, Kansas & Texas Railway Company may be decreed to pay unto your orator and the other bond- holders under aforesaid mortgage or deed of trust all arrears of interest now due, or that may hereafter become due and payable upon said bonds, together with all the costs and ex- penses in this behalf incurred and expended. And, in de- fault thereof, that the said defendants above named, and all persons claiming under them or either of them, may be for- ever barred and foreclosed of and from all equity of redemp- tion and claim of, in and to the said mortgaged premises, and every part and parcel thereof, and that all and singular the said mortgaged premises, within the jurisdiction of this honorable court, with the appurtenances, property and effects, rights, and immunities and franchises in the said moi;tgage mentioned, may be sold under a decree of this honorable court, and that out of the money arising from the sale there- 320 SUITS IN EQUITY. of, after deducting from the proceeds of any such sale just al- lowance for all disbursements and expenses of the said sale, including attorneys' and counsel fees, and the reasonable charges of your orator for services rendered as trustee and for all expenses incurred by it in the premises, and all payments which may be made for taxes or assessments on the said prem- ises, or any part thereof, to apply the said proceeds to the payment of the principal of such of the aforesaid bonds as may be at that time unpaid, whether or not the same shall previously have become due, and of the interest which shall at that time have accrued on the said principal and be un- paid, without discrimination or preference, ratably to the aggregate amount of such unpaid principal and accrued and unpaid interest. And your orator further prays that an account may be taken of the bonds secured by the said general consolidated mortgage, and of the amount due on said bonds for principal and interest, or either, and the names of the lawful holders thereof may be ascertained. And your orator further prays that a receiver may be ap- pointed according to the course and practice of this court, with the usual powers of receivers in like cases of all the property, equitable interest, things in action, effects, money, receipts and earnings, rights, privileges, franchises and im- munities of the said railway company, and of all other prop- erty included in and covered by the said mortgage within the jurisdiction of this honorable court, and that the defendants be decreed to make such transfer or conveyances to such re- ceiver, and to the purchasers of said property at any sale as aforesaid, as may be necessary and proper to put them oi either of them in possession and control of said property. And your orator further prays that a writ of injunction is- suing out of and under the seal of this honorable court, or issued by one of your honors, according to the form of the BILLS IN SPECIAL CASES. 321 Statute in such case made and provided, directing, command- ing, enjoining and restraining the said defendants, and each and every one of them, from interfering with, transferring, selling and disposing of any of the property mentioned in and covered by the said mortgage, or from taking possession of, levying upon or attempting to sell, either by judicial process or otherwise, any portion of the property embraced in or cov- ered by the said mortgage; and that your orator may have such further or other relief in the premises as the nature of the circumstances of this case may require and to this hon- orable court shall seem meet. And it may please your honors to grant unto your orator a writ of injunction, issuing out of and under the seal of this honorable court, or issued by one of your honors, according to the form of the statute in such case made and provided, directing, commanding, enjoining and restraining the said de- fendants, and each and every one of them, from interfering with, transferring, selling or disposing of any of the prop- erty mentioned in or covered by the said mortgage, or from taking possession of, levying upon or attempting to sell, either by judicial process or otherwise, any portion of the property embraced in or covered by the said mortgage. And may it please your honors to grant unto your orator a subpoena of the United States of America, issuing out of and under the seal of this honorable court, directed to the Missouri, Kan- sas & Texas Railway Company, and the Missouri Pacific Railway Company, the defendants respectively, therein and thereby commanding them, on a day certain therein to be named, and under a certain penalty, to be and appear before this honorable court, then and there to answer (but not un- der oath) all and singular the premises, and to stand to, per- form and abide by the said order, direction and decree as may be made against them in the premises as shall seem meet and agreeable to equity and good conscience. And as to the said Missouri Pacific Railway Company, who 322 SUITS IN EQUITY. is properly a party defendant to this bill of complaint, and who is a citizen of the state of Missouri, and who may be out of the jurisdiction of this court, your orator prays that proc- ess may be issued to make it party if it should come within such jurisdiction, or that if it should not come within such jurisdiction, such proceedings may be had in regard to such defendant, by publication or otherwise, to conclude it in this behalf as may be authorized by and be according to the form of the statutes in such case made and provided. And your orator, as in duty bound, will ever pray, etc. X. & X., Solicitors for Complainant. United States of America, District of , ss. E. L., being duly sworn, says : That he is the vice-president of the Mercantile Trust Company, the complainant in the fore- going bill of complaint ; that he has read the foregoing bill of complaint and knows the contents thereof ; that the allegations therein contained, as far as they relate to his own acts, are true, and as far as they relate to the acts of others he believes them to be true. That in regard to all matters and things in the foregoing bill of complaint alleged which are not within the personal knowlege of this deponent the deponent has been fully in- formed and he believes that the same are true. E. L. Sworn to before me this day of . ISeal.-] H. P., U. S. Commissioner for the District of . (i) Taken from the record in Mercantile Trust Co. vs. M. K. & T. Ry. pending in the Circuit Court of the United States for the District of Kansas. As to bills for foreclosing mortgages see note to Seattle, etc., R. R. Co. vs. Union Trust Co., 24 C. C. A. 523; Compton vs. R. R. Co., 15 C. C. A. 397, 68 Fed. Rep. 263 ; Toledo, St. L. & K. C. R. R. Co. vs. Continental Trust Co., 36 C. C. A. ISS, 95 Fed. Rep. 497- BILLS IN SPECIAL CASES. 323 No. 288. To have Goods Redelivered, which have been Deposited as a Security for Money Lent. \Caption, address, and introduction.^ That your orator, having occasion for a sum of money for the purpose of his business, made application to C. D., of, etc., the defendant herein, to lend him the same, and thereupon the said C. D., on or about , advanced and lent to your orator the sum of dollars (i), and in order to secure the repayment thereof with interest your orator deposited with the said defendant [here insert a description of the goods\, which were of the value of dollars, and upwards, and at the same time executed and delivered to the said defendant a bill of sale of the said goods so deposited with him ; but it was not meant and intended thereby, either by your orator or the said defendant, that the said transaction should amount to an absolute sale of the said goods to the said defendant, but it was expressly agreed between your orator and the said defendant that your orator should, nevertheless, be at liberty to redeem the same. And your orator further shows that being desirous to re- deem the said goods, he has repeatedly applied to the said C. D., and has offered to repay him the said sum of dollars, with lawful interest thereon, on having the said goods rede- livered to him, with which just and reasonable requests your orator hoped that the said C. D. would have complied, as in justice and equity he ought to have done. But now so it is, etc. \See No. 227.] To the end, etc. [See No. 230.] And that the defendant may answer the premises ; and that an account may be taken of what is due to the said de- fendant for principal and interest in respect of the said loan of dollars, and that upon payment thereof by your ora- tor the said defendant may be decreed to deliver over to your orator the said goods so deposited with him as aforesaid. \And for further relief] May it please, etc. (i) See No. 286, note 2. 3^4 SUITS IN EQUITY. No. 289. To Redeem by Purchaser of an Equity of Redemption From the Assignee in Insolvency of the Mortgagor. [Caption, address, andintroductionl] That one S. H., of N., in said county of W., and state of -, on or about the day of , was seized in fee. simple of, or otherwise well entitled to, certain real estate situated in said N., particularly described in certain deeds of conveyance of the same to said S. H. — one from J. F. and S. W., dated , and one from J. E., dated , recorded in the registry of deeds for the county of W., book 242, page 32 ; also a deed from J. E. to said S. H., dated , recorded in said registry of deeds, book 248, page 457, copies of which deeds are hereunto annexed, and made a part of this bill, and marked . And your orator further shows that the said S. H., on or about said day of , made a conveyance of said premises, by way of mortgage, to one H. M., of B., in the county of S., and commonwealth of Massachusetts, to secure the repayment of a sum of money, with interest then due from the said S. H. to the said H. M. ; and that subse- quently, and on or about the day of , the said H. M. transferred and assigned all his interest in said mort- gage deed, and in the premises therein described, and in the debt thereby secured, to the defendant. Copies of said mort- gage deed, and of the assignment thereof, are hereunto an- nexed, marked , and made a part of this bill. And your orator further shows that after the making of the said transfer, and on the day of , the said defendant entered into the possession of the said mortgaged premises, or into the receipt of the rents and profits thereof, and has ever since continued in such possession and receipt. And your orator further shows that since the said mort- gaged premises have been in the possession of the defendant, the mills and principal buildings thereon have been destroyed BILLS IN SPECIAL CASES. 32$ by fire, and that the same were insured by the said S. H., who occupied said premises under lease from said defendant for the benefit of said defendant, as further security for said mortgage debt, and that large sums have been paid to said defendant on said policies, and that they still hold other pol- icies upon the machinery in said mills, which was also de- stroyed by fire, which policies have been assigned to said defendant as further security for, and in payment of, said mortgaged debt, and that the whole amount of said policies is sufficient to cancel the greater part, if not the whole, of the residue of said debt, which had not otherwise been paid by said S. H., and that if a just account were taken of such payments, and of the sums received, or to be received, on said policies, which are now due and payable, and of said rents and profits received by said defendant, the whole of said mortgage debt would be found to be justly paid and dis- charged. And your orator further shows that on the day .or , the equity of redemption which the said S. H. retained and owned in said property was transferred to one A. W. by assignments in the course of proceedings under the insolvent law of said commonwealth of Massachusetts, to which the said S. H. was a party, and that said A. W., as such assignee of said S. H., by his deed dated the day of , con- veyed said equity of redemption to your orator, a copy of which deed is hereunto annexed, marked . And your orator charges that the matter in dispute herein exceeds the sum or value of two thousand dollars exclusive of interest and costs (i). And your orator further shows that being the owner of said right of redemption in said property, he has applied to said defendant and requested him to come to an account for the rents and profits of the said premises so received by him, and of the moneys received by him from said S. H., for the interest and principal of said debt, and from the said policies of insurance, and to deliver up the possession of 326 SUITS IjST equity. said mortgaged premises to him, upon being paid what, if anything, should be found to be justly due to him upon said account, which your orator is, and has been, ready and will- ing to pay, and is ready to bring the same into court, if any- thing shall be found to be justly due to said defendant upon the proper taking of said account. And your orator well hoped that the said defendant would have complied with such requests, as in justice and equity he ought to have done ; but the said defendant, acting in concert with divers persons unknown to your orator, refused to comply there- with, and insists upon holding possession of said estate, and foreclosing your orator's right of redemption therein, and re- taining said policies and the amounts received thereon, and said rents and profits, without accounting for the same. To the end, therefore, that the said defendant may, if he can, show why your orator should not have the relief hereby prayed, and the said defendant may answer the premises, and that an account may be taken of what, if anything, is due to the said defendant for principal and interest on the said mort- gage, and that an account may be taken of the rents and profits of the said mortgaged premises, which have been pos- sessed or received by the said defendant, or by any other person or persons, by his order or for his use, or which, without their willful default or neglect, might have been re- ceived ; and also of all the sums that may have been paid by said S. H. or others towards the principal and interest of said mortgage debt; and also of the policies of insurance and other securities which the said defendant has received, and of the sums which he has or might have realized therefrom, on account of the principal and interest of 5aid debt, and of the value of such policies and other securities now in his hands on account of said debt, which he has not sold or turned into money ; and that the said defendant be ordered to apply the same to the payment of said debt; and that if it shall appear that said rents and profits and the payments and the proceeds of said policies and other securities have BILLS IN SPECIAL CASES. 3^7 been and'are more than sufficient to pay the principal and interest of said mortgage debt, that the residue may be paid over to your orator ; and that your orator may be permitted to redeem the said premises, your orator being ready and wilHng, and hereby offering to pay what, if anything, shall appear to remain due, in respect to the principal and interest on the said mortgage ; and that the said defendant may be decreed to deliver up possession of the said mortgaged prem- ises to your orator, or to such person as he shall direct, free from all encumbrances made by him, or any persons claim- ing under him, and may deliver to your orator all deeds and -writings in his custody or power relating to the said mort- gaged premises ; and that your orator may have such further and other relief in the premises as the nature of this case shall require, and to your honors shall seem meet. May it please your honors to grant unto your orator the subpoena of the United States of America, to be directed to the said C. D., thereby commanding him, at a certain day, and under a certain pain therein to be specified, personally to be and appear before your honors in this honorable court, and then and there to answer all and singular the premises, and to stand to, abide, and perform such order and decree thereon as to your honors shall seem meet. A. B. X. & X., Solicitors. [Verification, as in No. 279. J (i) See Act of March 3, 1887, 25 Stat, at L., 433 ; Desty Fed. Proc , Sec. 84. No. 93. By Husband of Legatee against Executor (O. [ Tzile, address, and introduction!\ That W. S., late of, etc., duly made and published his last will and testament in writing, bearing date on or about , and thereby, amongst other bequests, gave to his nephews and nieces, the children of his late sister, M. A., the sum of 328 SUITS IN EQUITY. dollars each, to be paid to them as they should respectively attain the age of twenty-one years, and appointed C. D., of, etc., the defendant hereinafter named, the sole executor of his said will, as in and by the said will, or the probate thereof when produced will appear. And your orator further shows unto your honors that the said C. D., soon after the death of the said testator, duly proved the said will in the proper court, and hath since pos- sessed himself of the personal estate and effects of the said testator to an amount much more than sufficient for the pay- ment of his just debts, funeral and testamentary expenses and legacies. And your orator further shows that after the death of the said testator your orator intermarried with A. A., who was- the niece of the said testator, and one of the children of the said M. A., in the said will named, and by virtue of such intermarriage your orator in right of his said wife became entitled to demand and receive the aforesaid bequest of (2) dollars. And your orator further shows that your orator's said wife lived to attain her age of twenty-one years, and that she hath lately departed this life, and that neither your orator nor his said wife received any part of the said legacy. And your orator further shows that having obtained let- ters of administration upon the estate of his said wife, he has repeatedly applied to the said C. D. for the payment of the said legacy, and interest thereon from the time of his said late wife attaining her age of twenty-one years, and your orator hoped that such his reasonable requests would have been complied with, as in justice and equity they ought to have been. But now so it is, may it please your honors, that the said C. D., combining, etc. [See No. 227.J To the. end, therefore, that, etc. \See No. 230.] And that an account may be taken of what is due and owing to your orator for the principal and interest of the said legacy, and that- the said defendant may be decreed to pay BILLS IN SPECIAL CASES. 329 the same to your orator. And if the said defendant shall not admit assets of the said testator sufficient to answer the same, then that an account may be taken of the estate and effects of the said testator which have been possessed or received by the said defendant or by any other person by his order or to his use, and that the same may be applifed in a due course of administration. [And for further relief. 1 May it please your honors, etc. [Verification, as in No. 2yg.'\ (i) To recover a legacy at common law the assent of the executor was necessary ; and the jurisdiction of equity over legacies, as well as over administrations, is based upon the trust relation existing between an executor or administrator and the creditors, legatees and distribu- tees ; upon the necessity of a discovery, an accounting or a distributing of assets in order to determine the rights of all interested parties ; and the fact that the remedies given by all other courts are inadequate, incomplete and uncertain. Pom. Eq. Jur., Sec. 1127. In this country, probate courts have generally the power to decree the payment of leg- acies at the suit of the individual legatees, during the pendency of an administration ; and in such proceedings they follow the settled doc- trines of equity. Pom. Eq. Jur., Sec. 1 129. For an extensive collation of the cases illustrating the jurisdiction of probate courts and courts of equity in the several states over the administration of estates, including suits for the payments of legacies, see Pom. Eq. Jur., Sec. 1 1 54, note 2. (2) See No. 286, note 2. No. 291. On Behalf of Infant Legatees (i). [Caption, address., and introdiiction.\ The plaintiffs, infants under the age of twenty-one years, by J. E., of, etc., their next friend, that E. H., the elder, late of, etc., but now deceased, duly made and published his last will and testament in writing bearing date, etc., whereby he directed that W. T., of, etc., and E. B., of, etc., the defendants hereinafter named, and C. G., of, etc., who were the trustees and executors in his said will named, should, 330 SUITS IN EQUITY. out of the moneys which should come to their hands in man- ner therein mentioned, lay out and invest in or upon govern- ment or real securities at interest the sum of dollars, upon trust, etc. [^The trustees were to pay the dividends to E. H., the testator^ s wife, during her life, or until her second marriage, and after her deceases or second marriage, the whole of the dividends to be applied by the trustees for the maintenance and education of testator'' s grandchildren, the plaintiffs, to whom the principal was to be transferred, to the grandsons at twenty- one, and to the granddatighters at twenty -one or marriage\, as in and by, etc. And the plaintiffs further show that the said testator departed this life in or about the month of , without having in any manner revoked or altered the said will, except by a codicil bearing date, etc., which did not re- late to or affect the said trusts of the said sum of dollars. And the plaintiffs further show unto your honors that W. T., and E. B., and the said C. G. duly proved the said testa- tor's will, and acted in the trusts thereof, and [out of the moneys which came to their hands from the estate and effects of the said testator, in or about, etc., appropriated the sum of pounds sterling, in satisfaction of the aforesaid legacy, in the purchase of the sum of pounds sterling three per cent, consolidated bank annuities, and the said sum of stock is now standing in their names in the books of the governor and company of the Bank of England. And the plaintiffs further show that the said C. G. has de- parted this life, and that the said E. H., on or about, etc., intermarried with and is now the wife of the said J. E., whereupon the interest of the said E. H. in the said sum of pounds sterling three per cent, consolidated bank annu- ities wholly ceased. And the plaintiffs further show that the said defendants paid to the said J. E. and E., his wife, the year's dividends which became due on the said sum of stock on the day of , as well for the interest of the said E. E. in the said stock as for the maintenance and education of the plaintiffs BILLS IN SPECIAL CASES. 33 ^ Up to that time; but the said defendants have retained in their hands the subsequent dividends which accrued due on the said stock, and have made no payments or allowances thereon for the maintenance or education of the plaintiffs. And the plaintiffs further show that some proper person or persons ought be appointed as the guardian or guardians of the plaintiffs, with suitable allowances for their main- tenance and education for the time past since the said day of , and for the time to come, and that the said sum of stock ought to be secured in this honorable court. To the end, therefore, etc. [See No. 230.J And that the said defendants may answer the premises ; and that some proper person or persons may be appointed the guardian or guardians of the plaintiffs, with suitable allowances for their maintenance and education for the time past since the said day of , and for the time to come, and that the said defendants may account for the dividends of the said trust stock which have accrued due since the said day of , and may thereout pay the allowances which shall be made for the maintenance and ed- ucatioi; of the plaintiffs since the said day of , and may pay the residue thereof into this honorable court for the benefit of the plaintiffs ; and may transfer also the said sum of pounds sterling three per cent, consolidated bank annuities into the name of the accountant-general of this honorable court, to be there secured for the benefit of the plaintiffs and such other persons as may eventually be in- terested therein. [And for further relief^ May it please, etc. [Veriftcation, as in No. 279.] (i) A specific legatee, filing a bill for a general account of the admin- istration, is not confined to the particular errors alleged in the bill, as he might be if he were surcharging and falsifying a stated account. Pulliam vs. PuUiam, 10 Fed. Rep., 53. See also No. 286, note 2. 332 SUITS IN EQUITY. No. 292. Against an Executor by Legatees and the Administrator of a Deceased Legatee. \Caption, and address, and intra ductioni\ Your orators and oratrix, administrator of the goods and chattels, rights and credits of F. K., late of, etc., de- ceased, H. K., the younger of, etc., and S. K., an infant under the age of twenty-one years, to wit, about the age of twenty years, by the said H. K., the elder, her father and next friend, show unto your honors that J. R., late of, etc., being possessed of, or well entitled unto, a considerable per- sonal estate, duly made and published his last will and tes- tament in writing, and a codicil thereunto annexed, the said will bearing date on or about the day of , and by his said will amongst other things gave and bequeathed unto your oratrix, S. K., the sum of $ , to be paid to her at the age of twenty-one years or day of marriage, which should first happen. And the said testator also gave and bequeathed unto your orator H. K., the younger, the sum of $ , to be paid to him on his attaining his age of twenty-one years. And the said testator, after giving divers other legacies, gave and bequeathed unto R. B. the defendant herein, and W. R. H., of, etc., and who departed this life in the lifetime of the said testator, the rest and residue of his estate and efifects in trust, to be equally divided between such children of his, the said testator's niece M. K., as should be living at the time of his decease, and thereby appointed the said R. B. executor thereof. As in and by the said will, or the probate thereof, when produced to this honorable court will appear. And your orators and oratrix further show unto your hon- ors that the said J. R. departed this life on or about , without revoking or altering his said will, save by the said codicil, and without revoking or altering the said codicil, or any part thereof; whereupon the said R. B., the executor in the said will named, duly proved the same in the proper court, and undertook the executorship thereof, and possessed BILLS IN SPECIAL CASES. 333 himself of the personal estate and effects of the said testator to a very considerable amount, and more than sufficient to discharge his just debts, funeral expenses, and legacies. And your orators and oratrix further show unto your honors that the said F. K., in the said testator's will named, and your orator and oratrix H. K., the younger, and S. K. were the only children of the said M. K. in the said will named who were living at the time of the death of the said testator, and your orator H. K., the younger, became enti- tled to have and receive his said legacy of $r- so be- queathed to him as aforesaid, and also his third part or share of the residue of the personal estate and effects of the said testator after payment of all his just debts, legacies, and fu- neral expenses ; and your oratrix S. K., is entitled to have her said legacy of $ , and also her third part or share of the said residue secured for her benefit until she shall attain her age of twenty-one years or day of marriage ; and your orator H. K., the elder, is entitled, as such administrator of the said F. K., as aforesaid, to have and receive the remaining third part or share of the said residue. And your orators and oratrix further show unto your honors that the said F. K. departed this life on or about , intestate, and that since his death your orator, the said H. K., the elder, has obtained letters of administration of the personal estate and effects of the said F. K., to be granted to him by the proper court. And your orators and oratrix further show unto your hon- ors that your orator H. K., the younger, attained the age of twenty-one years on or about , and your orators and oratrix being so entitled as aforesaid, your orators have made frequent applications to the said R. B. to pay the said legacy of $ , and the said two-third shares of the said residue ; and your oratrix hath also applied to him, the said R. B., to lay out and invest her said legacy of $ , and her third share of the said residue, upon some proper security, for her benefit, until she shall attain her age of twenty-one years or day of marriage, with which just and reasonable requests your ora- tors and oratrix well hoped that the said defendant would 334 SUITS IN EQUITY. have complied, as in justice and equity he ought to have done. But now so it is, etc., he absolutely refuses so to do, sometimes pretending that the said testator never made any such will as is hereinbefore stated. Whereas your orators and oratrix charge the contrary thereof to be true, and so the said defendant will at other times admit. But then again he pretends that the said testator's personal estate was very small and inconsiderable, and not nearly sufficient to pay and satisfy his just debts and funeral expenses. Whereas your orators and oratrix expressly charge that the said personal estate and effects of the said testator were much more than sufficient to discharge the said testator's just debts, and funeral expenses, and legacies; and so it would appear if the said defendant would set forth a full, true, and particular account of all and every the personal estate and effects of the said testator come to his hands or use, and also a full, true and particular account of the manner in which he hath dis- posed of or applied the same, but which the said defendant refuses to do. All which actings, etc. [See No. 229.J And that the said defendant may answer the premises ; and that an account may be taken of the personal estate and effects of the said testator come to the hands of the said de- fendant, or of any person or persons by his order or for his use, and also of the said testator's funeral expenses, debts, and legacies ; and that the same may be applied in a due course of administration ; and that the said defendant may be decreed to pay to your said orator H. K., the younger, his said legacy of $ ; and that the clear residiie of the said testator's personal estate and effects may be ascertained, and that such share thereof as shall appear to belong and be due to your orators respectively may be paid to them respectively, and that your oratrix's said legacy of $ , and also such share of the said residue as she shall appear to be entitled to may be secured for her benefit ; and that for those purposes all proper directions may be given. \And for further relief^ May it please, etc. [Verification, as in No. 2.yg.] BILLS IN SPECIAL CASES. 335 No. 293. By an Executor and Trustee Under a Will, to Carry the Trusts Thereof into Execution (i). \_Caption, address, and introduction.^ The plaintiff, A. B., of, etc., is executor of the will and codicils of M. S., late of, etc., deceased, and also a trustee, devisee, and legatee named in the said will and codicils, and that the said M. S., at the several times of making her will and codicils hereinafter mentioned, and at the time of her death, was seized or entitled in fee-simple of or to divers messuages, lands, etc., of considerable yearly value, in the several counties of C. and D., in the state of , and being so seized or entitled, and also possessed of considerable per- sonal estate, the said M. S., on or about , made her last will and testament in writing, and which was duly signed and attested, and published by her, according to law, and thereby, after giving divers pecuniary and specific legacies, and divers annuities, the said testatrix gave and devised unto the plaintiff all, etc. \Stating the substance of the will (2).] And the said testatrix afterwards, on or about , made a codicil to her said will, which was duly signed, attested, and published according to law, and thereby gave, etc., and in all other respects she thereby confirmed her said will and all other codicils by her theretofore made; as by said will and the said several codicils thereto, or the probate thereof, to which the plaintiff craves leave to refer, when produced, will appear. And the plaintiff further shows that the said testatrix M. S. departed this life on or about , without having revoked or altered her said will and codicils, save as such will is revoked or altered by the said codicils, and as some of the said codicils have been revoked or altered by some or one of such subsequent codicils ; and the said testatrix at her death left the said E. G., formerly E. S., and the said B. S., her cousins and co-heiresses at law. And the plaintiff being 336 SUITS IN EQUITY. by the said codicil of the day of , appointed sole executor of the said will and codicils, has since her death duly proved the said will and codicils in the proper court, and taken upon himself the execution thereof. And the plaintiff further shows that the said testatrix, at the time of her death, was possessed of, interested in, and entitled unto considerable personal estate and effects, and, amongst other things, she was entitled to an eighth share and interest in a certain copartnership trade or business of a tin-blower and tin-melter, which was carried on by the testa- trix and certain other persons at , under the firm of S. F. & Co., in which the testatrix had some share of the capital, and which was a profitable business, and by the articles of copartnership under which the said business was carried on, the plaintiff, as the said testatrix's personal representative, is now entitled to be concerned in such share of the said busi- ness for the benefit of the said testatrix's estate ; and she was also possessed of or entitled to certain leasehold estates held by her for the remainder of certain long terms, etc. And the plaintiflF further shows that he has possessed him- self of some parts of the testatrix's personal estate, and has discharged her funeral expenses, and some of her debts and legacies, and the plaintiff has also, so far as he has been able, entered into possession of the said testatrix's estates, which she was seized of or entitled to at the times when she made her said will and codicils, and which consisted of, etc., being all together of the yearly value of dollars or thereabouts, besides the said mansion-house, and besides the premises, which, by the said codicil, dated on the day of , are devised to the plaintiff for his own use and benefit; and the plaintiff is desirous of applying the said testatrix's per- sonal estate and effects, not specially bequeathed, in payment of the said testatrix's debts, and of her legacies now remain- ing unpaid, and of the annuities bequeathed by the said will and codicils, so far as the same will extend, and of paying the remainder thereof out of the rents and profits of th^ said BILLS IN SPECIAL CASES. 337 Teal estate, and of applying the whole of the rents and profits, according to the directions of the said will and codicils, as in justice and equity ought to be the case. But now so it is, may it please your honors, that the said C. D. and E., his wife, B. S., and J. S., in concert with each other, make various objections to the plaintiff's applying the said personal estate, and the rents and profits of the said real estate, according to the directions of the said will and codicil ; and the said defendants, C. D. and E., his wife, sometimes pretend, that by virtue of the said testatrix's will, they are entitled to the residue of the said testatrix's personal estate, not specifically bequeathed, including all her household es- tates, after payment of all her funeral expenses and debts, and that the said personal estate is not subject to the pay- ment of the several legacies and annuities given by the testa- trix's said will and codicils, but is exempt therefrom, and that all the said legacies and annuities ought to be paid out of the rents and profits of the said testatrix's real estates. Whereas the plaintiff charges the contrary of such pre- tenses to be true, and that the said personal estate is appli- cable to the payment of all the said testatrix's legacies and annuities, after satisfying all her funeral expenses and debts ; and the said C. D. and E., his wife, are desirous that the plaintiff, as the personal representative of the said testatrix, should, by means of the said testatrix's share of the capital employed in the said trade or business, carry on the said trade or business for the benefit of them and of the said testatrix's estate, but which the plaintiff can not safely do without the direction and indemnity of this court ; and the said C. D. alleges that he is not of ability to maintain and educate his said son, J. S., who is an infant of the age of ten years or thereabouts, and he therefore claims to have some part of the rents and profits of the said premises paid to him, for the maintenance and education of the said J. S. ; and the plaintiff, under the circumstances aforesaid, is unable to ad- minister the said personal estate, and to execute the trusts of 338 SUITS IN EQUITY. the said real estates, without the directions of this honorable court, and the defendants are desirous of having a person appointed by this court to receive the rents and profits of the said real estates, devised as aforesaid by the said fifth codicil, to which the plaintiff has no objection. In consideration whereof, etc. To the end, therefore, etc. [No. 230.J And that the trusts of said will and codicil may be per- formed and carried into execution by and under the direction of this court, and that an account may be taken of the said testatrix's personal estate and effects, not specifically be- queathed, and of her funeral expense^s and debts, and of the legacies and annuities bequeathed by the said will and codi- cils, the plaintiff being ready and hereby offering to account for all such parts of the said personal estate as have been possessed by him, and that the said personal estate may be applied in payment of the said funeral expenses, debts, and legacies and annuities in a due course of administration, and that the clear residue, if any, of the said personal estate may be ascertained and paid to the said defendants, C. D. and E., his wife, in her right ; and in case it shall appear that the said personal estate, not specifically bequeathed, is not suf- ficient for payment of all the said funeral expenses, debts, legacies, and annuities, or that any parts thereof are not pay- able out of such personal estate, then that proper directions may be given for payment of such deficiency, or of such parts thereof as are not payable out of the said personal estate, according to the trusts of the said term of one hun- dred years, vested in the plaintiff as aforesaid, and that an account may be taken of the rents and profits of the said real estates, comprised in the said term received by oi: come to- the hands of the plaintiff, and that the same may be applied according to the trusts of the said term ; and that proper di- rections may be given touching the effects specifically be- queathed by the said will and codicils as heirlooms, and that proper inventories may be made thereof; and that all neces- sary directiotis may be given touching the application of a BILLS IN SPECIAL CASES. 339 sufficient part of the rents and profits of the said real estates to the maintenance and education of the said J. S., in case this court shall be of opinion that any allowance ought to be made for that purpose ; and that a proper person may be ap- pointed by this honorable court to receive the rents and prof- its of the said real estates devised as aforesaid by the fifth codicil. [And further relief^ May it please, etc. [Pray subpoena against C. D. and E., his wife, B. S., and J. S,, and verify as in No. 279.] (i) In pleading a trust concerning lands it need not be alleged that it was created by writing ; this will be presumed if the statute requires a writing in order to create such a trust as the bill alleges. Lamb vs. Starr, Deady (U. S.) 350. Equity will enforce all lawful trusts. If a trust should be created for an illegal or fraudulent purpose, equity will not enforce it, nor, it seems, relieve the person creating it, by set- ting aside the conveyance. When, however, a trust is unlawful because forbidden by statute, the whole disposition is void. Pom. Eq. Jur., Sec. 987. (2) As to jurisdiction of Federal Court, see No. 284. No. 294, To Cancel a W^ritten Instrument — a Bill of Exchange (i). [Caption, address, and introduction.\ That your orator, previously to the month of , had fre- quently accepted bills of exchange for the accommodation of Messrs. D. W. and J. H., then of . And that some time in or about the said month of they applied to your ora- tor to assist them with a loan of his acceptance for a sum of money, and they severally assured your orator that if he would accept or indorse a certain bill of exchange for them, the said D. W. and J. H., they could procure the same to be discounted, and that they, or one of them, would punctually provide your orator with the money to take up the same. And your orator, relying upon such promise, agreed to accept such bill of exchange to be drawn upon him by the said D. W., 34° SUITS IN EQUITY. and J. H. accordingly drew upon your orator a certain bill of exchange for the sum of dollars (2), dated the day of , and payable three months after date, which your orator thereupon accepted. And your orator further shows unto your honors that the said bill of exchange having been delivered by your orator to the said D. W. and J. H., without any consideration whatso- ever had or received by your orator for the same, the said D. W. and J. H. ought either to have provided your orator with the money to take up the same when due, as they had prom- ised, or else have redelivered the same to your orator to be canceled; and your orator hoped that the said defendants would have provided your orator with the money to take up the said bill of exchange when the same became due, or else would have redelivered the same or caused the same to have been redelivered to your orator to be canceled, and that no proceedings would have been had against your orator to recover the amount thereof, as in justice and eqi:ity ought to have been the case. But now so it is, may it please your honors, that the said D. W. and J. H., combining and confederating to and with J. J., of, etc., and T. O., of, etc., and with divers other persons, etc., they, the said confederates, absolutely refuse to deliver or cause or procure to be delivered up to your orator the said bill of exchange to be canceled, and instead thereof the said T. O. hath got into his possession the said bill, and has lately commenced an action at law against your orator to recover the amount thereof, the said confederates, or some of them, at times giving out and pretending that the said bill of exchange was made and given by your orator to the said D. W. and J. H. for a full valuable consideration or consid- erations in money. Whereas your orator expressly charges the contrary thereof to be the truth, and that your orator never had or received any good or valuable consideration or considerations for the said bill of exchange, and that the same was delivered by him to BILLS IN SPECIAL CASES. 34 1 the said D. W. and J. H., for their accommodation, without receiving any consideration or considerations for the same, and upon the firm reliance that they, or one of them, would supply your orator with the money to take the said bill up when the same became due and payable, and so the said con- federates will sometimes admit ; but then the said confederate J. J. pretends that he discounted the said bill of exchange for full valuable considerations in money or otherwise at the time when the said bill was indorsed to him, and that when he paid or gave the full valuable consideration or considerations for the same, he had not notice that the said bill had been given by your orator in the manner and upon the express stipulations hereinbefore mentioned, or without a full valu- able or any consideration received by your orator for the same, and that therefore your orator ought to pay the amount thereof. And the said J. J. further pretends that he indorsed the said bill of exchange to the said T. O. for good and valu- able considerations before he, the said J. J., received any notice from your orator, and before your orator had requested him to deliver up the same. Whereas your orator charges the contrary of all such pretenses to be true, and particularly that the said J. J. did not ever give, pay, or allow to the said D. W. and J. H., or either of them, the full value or any con- sideration whatever, for the said bill of exchange ; and that the said J. J. had full notice, or had some reason to know, believe, or suspect that the said bill had been given by your orator to the said D. W. and J. H., in the manner and upon the express stipulation hereinbefore mentioned, and without any valuable or other consideration having been received by your orator for the same. , And your orator further charges that the said J. J. received the said bill from the said D. W. and J. H., to get the same discounted for them, and with an express undertaking on his part to deliver over the money he obtained upon such bill to them, the said D. W. and J. H., but that he never did procure such bill to be discounted, or if he did he applied the moneys 342 SUITS IN EQUITY. he obtained upon the same to his own use, and never paid or delivered over any part thereof to the said D. W. and J. H., or either of them. And your orator further charges that the said J. J. has received notice from your orator and the said D. W. and J. H., of the terms upon which the said bill had been obtained by the said D. W. and J. H., and had been required by your orator to deliver up the same to him before he, the said J. J., had indorsed the said bill of exchange to the said T. O., and as evidence thereof your orator expressly charges that the said J. J. had the said bill of exchange in his custody, posses- sion, or power on the day of , last past ; and that the said J. J. did, on the day of , last, offer the said bill of exchange for sale, together with other bills, to various persons. And your orator further charges that at the time of the said bill of exchange being indorsed or delivered to the said T. O., and of his paying or giving such consideration or considera- tions (if any were or was paid by him) he knew, or had been infonned, or had some reason to know, believe, or suspect that your orator and the said D. W. and J. H. had never re- ceived the full or any consideration for the said bill of ex- change, and he well knew or had been informed that your orator had accepted the said bill of exchange for the accom- modation of the said D. W. and J. H., without having re- ceived any consideration for the same. And your orator further charges that the said T. O. is a trustee for the said bill of exchange for the said confederate J. J., or for some other person or persons whose names he refuses to discover, and that he holds the same for the said confederate J. J., or for such person or persons, without hav- ing given any consideration or considerations for the same, and that if he receives the amount of the said bill of ex- change, or any part thereof, he is to deliver over or pay the same to the said J. J., or such other person or persons, and that he is indemnified by the said J. J., or such other person BILLS IN SPECIAL CASES. 343 or persons, from all the costs attending the attempt to recover upon the said bill of exchange on which he has brought his said action at law. And notwithstanding the said T. O. got the said bill of exchange into his possession without giving any consideration for the same, yet he threatens and intends to proceed in his action at law, and in case he should recover judgment to take out execution against your orator for the amount thereof. And your orator further charges that the said several de- fendants, or some, or one of them, now have or has or lately had in their or one of their custody, possession, or power, some book or books of accounts, letters, documents, or writ- ings from which the truth of the several matters and things aforesaid would appear. And so it would appear if the said defendants would set forth a full, true, and particular account of all such books of account, . letters, documents, and writ- ings. All which actings, etc. [See Nos. 226, 228, and 230, as to the interrogating , the stating and charging parts]. And that the said defendant T. O. may be decreed to deliver up, and the said D. W. and J. H. and J. J. be decreed to procure, the said bill of exchange to be delivered up to your orator to be canceled, as having been given by your orator and received by the said D. W. and J. H., and the said several defendants, without any consideration. And that the said defendants, respectively may be restrained .by the injunction of this hon- orable court from proceeding in any action at law already commenced against your orator upon the said bill of ex- change, and from commencing any other proceedings at law against your orator upon the said bill of exchange. And that your orator may have such further and other relief in the premises as to your honor shall seem meet, and the nature of this case may require. May it please, etc. \Pray subpoena and injunction against all the defendants^ and verify as in No. 279.J (i) Mistake of law is no ground for relief if it consists of mere ignorance of law on part of complainant. Allen vs. Elder, 2 Am. St. 344 SUITS IN EQUITY. Rep., 63. But it is otherwise of an honest mistake of law on part of both parties. Allen vs. Elder, 2 Am. St. Rep., 63. To reform written instruments on ground of mistake it must be clearly established, but relief will not be withheld because there is conflicting testimony. Hutchinson vs. Ainsworth, 2 Am. St. Rep., 823. See Fuller vs. Percival, 126 Mass., 381, where a firm note fraudulently given by a partner of the plaintiff to a holder with notice of the fraud was canceled. So in an action on a note given for the price of land, defendant may have the note canceled to the extent of the damages sustained by him by reason of false representations in the sale. Hosle- ton vs. Dickinson, 51 Iowa, 244. (2) Must exceed $2,000 to give circuit court jurisdiction. See Act of March 3, 1887, as amended March, 1888; 25 Stat, at I,., 433. No. 295. To Enforce Specific Performance of a Contract to Make a r „ -, Policy of Insurance (i). [Caption.^ ^ ^ ' To the Judges of the Circuit Court of the United States for the 1 of : The A. B. Insurance Company, a corporation duly estab- lished by the laws of the state of , doing business at the city of , in the state of , brings this its bill of com- plaint against the C. D. Marine Insurance Company, a cor- poration duly established by the laws of the commonwealth of Massachusetts, doing business at the city of , in said commonwealth, and inhabitant of said district of . And thereupon your orator complains and says that in and by its charter and by the laws of the state of -, it was, on on the day of , and ever since has been, authorized and empowered to make insurance, among other things, against loss by the perils of the seas and against loss by fire ; that your orators on the said day of , underwrote and caused one D. M. to be insured for whom it might con- cern, payable in the event of loss to the said D. M., on one eighth of the good ship Republic, the said ship having been valued at dollars,, the sum of dollars, for the term BILLS IN SPECIAL CASES. 345 of one year at and from the day of , at noon, until the day of , at noon, against loss from sundry desig- nated risks, and especially from loss from the perils of the seas and from loss by fire, as will more fully appear from a copy hereunto annexed and made a part of this bill, of the policy issued by your orator to the said D. M., and marked "A." Your orator further says that thereafter the aforesaid in- surance so made by your orator upon the Republic, and on the night of the day of , the said ship was totally destroyed and lost by fire, one of the perils insured against ; that your orator thereupon became liable to pay, and there- after such loss did pay, to the said D. M., the full sum of dollars, the amount so as aforesaid by your orator un- derwritten. Your orator further says that after it had insured the said D. M., as aforesaid, and before the loss aforesaid of the said ship, and before the commencement of the fire by which its destruction was produced, your orator requested and author- ized C. W., of aforesaid, insurance broker, to cause and procure your orator to be reinsured in the sum of dol- lars upon the said Republic, for the term of six months, against all and singular the risks by your orator theretofore assumed, and especially against loss from the perils of the seas and from fire. Your orator further says that the said C. W., as the agent of your orator, in that behalf duly authorized and in its name and behalf, on Saturday, the day of , made appli- cation to the said defendant for the reinsurance by.it of your orator upon the said Republic, in and for the sum of dollars, for the term of six months from the day of aforesaid, against such risks as your orator had assumed, and especially against loss from the perils of the seas and against loss from fire; that the said application so made by the said C. W. was made at the office and usual place of business of the said CD. Marine Insurance Company in the city of ; 346 SUITS IN EQUITY. that it was so made in the first instance to the secretary of the defendant, and immediately thereafter, and on the day last aforesaid, to G. H., the president of the defendant, who was duly authorized to receive and act thereupon for the defendant. Your orator further says that upon the making of the said application, the said G. H., after consulting and advising with some person then present, whose name is to your orator un- known, replied to the said C. W. that the defendant would reinsure your orator, in the sum of (2) dollars, upon the said Republic, and would assume the risks proposed for the term of one year, at and for a premium of six percent upon the sum to be underwritten ; that they would insure against the said risks for the term of six months, at and for a pre- mium of three and one half of one percent upon the sum to be insured. Your orator further says that the said C. W., immediately thereafter the said application, communicated to your orator the terms upon which the said defendant would reinsure your orator upon the said Republic. Your orator further says that on the day of , your orator, upon being advised by the said C. W. as aforesaid, directed, authorized, and requested the said C. W., in the name and behalf of your orator, to accept the terms afore- said, for six months, and to procure for your orator a rein- surance, in accordance therewith, from the day of aforesaid. Your orator further says that the said C. W. as agent, and in behalf of your orator, on Monday, the day of the said , at or about eleven o'clock before noon, at the place of business of the said defendants in , and before any loss or damage had occurred to the said Republic, noti- fied the said G. H. that your orator had accepted the propo- sition of the defendants to reinsure your orator for the term of six months from the day of December aforesaid, at noon. BILLS IN SPECIAL CASES. 347 Your orator further says that on the said day of , and before any loss or damage had occurred to said ship, the above-named C. W., in behalf of your orator, embodied in a paper, partly printed and partly written, the terms of the contract of reinsurance, so, as aforesaid, on the day of , in answer to the aforesaid application, proposed to your orator by the said defendants, and so as aforesaid accepted on the morning of the day of '. Your orator further says that the said paper was examined,, approved, and retained by the said G. H., he in this behalf acting for the defendant, and by him was, in the name of the defendant, assented to, and thereupon a contract of reinsur- ance by and between the defendant and your orator was complete and concluded, upon the terms in said paper con- tained, by force whereof the defendant became and was liable and agreed to and with your orator to pay to it the sum of dollars, in the event that the said ship Republic should be lost or damaged within six months from and after noon of the said day of , by the perils of the seas or by fire. Your orator further says that the said G. H., in behalf of the defendant, and in its name and behalf, agreed with the said C. W., he acting for your orator, that a policy should be prepared and executed by the said defendant to your orator, at the early convenience of the defendant, and delivered ' to your orator; containing, with other usual and accustomary" clauses, the terms of the contract of reinsiirance, so as afore- said concluded by and between your orator and the defend- ant, and so as aforesaid embodied and set forth in the paper aforesaid. Your orator further says that the said C. W., on the day of , aforesaid, was authorized, ready, and willing, in behalf of your orator, to pay to the defendant, or secure to it.'-> satisfaction, at its election, the premium, so as aforesaid agreed upon, on the said reinsurance, but the same was not then paid, because the defendant was accustomed not to receive the premiums by it required in its contracts of insurance 348 SUITS IN EQUITY. until the preparation and delivery of the policies by them agreed to be issued. Your orator further says that the said C. W., on the said day of , immediately upon the conclusion of the aforesaid contract of reinsurance, advised your orator of its completion. Your orator further says that the said C. W., on Tuesday, the day of , aforesaid, notified the defendant that the said ship had been destroyed by fire and was totally lost, and at the same time asked E. R., secretary at the time of the defendant, in the presence and hearing of the said G. H., at the office of the said defendant, if the policy had been prepared for your orator, to which the said E. R., in the hear- ing of the said G. H., said no, assigning no reason for the delay, or intimating any refusal to execute such policy. Your orator further says that the said C. W., on Wednes- day, the day of , called a second time at the office of the defendant, and asked for the said policy, to which the said G. H. replied, he was in doubt whether the contract was complete and. obligatory, as it was made on a day regarded as Christmas-day, but he, the said G. H., had not made up his mind about it, and did not want to talk on the subject then. Your orator further says that one F. S., on the day of in behalf of your orator, made a draft upon the defend- I «.nt for the sum of (2) dollars, the amount of said reinsur- ance, less the premium, payable at sight, to J. S., your orator's vice-president, which draft was thereafter, on the day of , presented to the defendant, which they refused to pay or accept. Your orator further says that the said C. W., in behalf and in the name of your orator, in that behalf duly authorized, on the day of , at the office of the defendant, made demand upon the aforesaid G. H. for the execution and deliv- ery of the policy so as aforesaid by the said defendant there- tofore agreed to be by it executed and to your orator to be delivered, and at the same time tendered to the said defendant BILLS IN SPECIAL CASES. 349 the sum of dollars as and for premium, interest, and cost of policy, with which request the said G. H., in the name of the said defendant and in their behalf, refused to comply. Your orator further says that it has applied to the defendant for a copy of the aforesaid paper so left with it on the day of , which it refused to furnish. And your orator well hoped that the defendant would have complied with the reasonable requests of your orator. To the end, therefore, that the said defendant may, if he can, show why your orator should not have the relief hereby prayed, and may, according to the best and utmost of its knowledge, remembrance, information, and belief, full, trucj •direct, and perfect answer make to such of the several interro- gations hereinafter numbered and set forth as by the note hereunder written it is required to answer, that is to say: [Here set forth the questions?^ And your orator prays that the defendant may discover and produce the original paper or memorandum, so as afore- said made by said C. W., and dated day of , which was so as aforesaid left with their president at their place •of business on the aforesaid day of . And that the said agreement of the defendant to execute and deliver to your orator a policy of reinsurance, according to the terms of the aforesaid paper, and in accordance with the defendant's contract of insurance as aforesaid, may be specifically performed, your orator hereby undertaking to perform its undertakings in the premises. And that the said defendant may be decreed to pay to your orator the sum of dollars, the sum so as aforesaid by them reinsured to your orator, with interest thereon. And that your orator shall have such other and further relief as the case may require and as shall seem meet to the court, and as shall be agreeable to equity and good conscience. And your orator prays this honorable court to issue a writ of subpoena in due form of law according to the rules of this court, to be directed to the C. D. Marine Insurance Company, 350 SUITS IN EQUITY. a corporation by the law of Massachusetts, at , com- manding it on a certain day and under a certain penalty to be and appear before this honorable court, and to stand to,, abide, and perform such order and decree therein as to this court shall seem meet, and as shall be agreeable to equity and good conscience. The A. B. Insurance Company, By R. X., its Solicitor. S. X., Counsel. \y eriUcation, as in No. 279. J (i) Union Mut. Ins. Co. vs. Commercial Mut. Mar. Ins. Co., 2 Curt, 524. See also Taylor vs. The Merchants Fire Ins. Co., 9 How., 360 ; Herbert vs. Mut. L. Ins. Co., 12 Fed. Rep., 807 ; Brugger vs. State Inv. and Ins. Co., 5 Saw., 304; S. C. 8 Ins. I,aw. Jour., 293. (2) See No. 294, note 2. No. 296. To Reform a Policy of Insurance (i). \_Capiwn, Address, and Introduction.] And thereupon your orator complains and says that on the day of, etc., he was the sole owner of a ship or vessel of the value of dollars, called the , then lying at Q.,. in the province of , and bound on a voyage from said Q. to a port of discharge in said U.K., on board which said ship there had been and was then laden a cargo of merchandise, the property of various persons other than your orator, and which said merchandise your orator has agreed should be conveyed in said ship, from said Q. to said port of discharge^ for a certain amount of hire, or freight, to be paid him by said parties respectively therefor, amounting in the whole to the sum of dollars. And your orator being desirous to pro- cure said vessel and said freight to be insured for said voyage^ at and from said Q. to said port of discharge, namely, the said ship for the sum of dollars, valued at dollars, and said freight for the sum of dollars, valued at BILLS IN SPECIAL CASES. 351 dollars, against the perils of the seas and other risks usually- contained in marine policies of insurance, on property of such description, did, in writing, by letter, bearing date, etc., request his agent, one J. E. ,of said Q., to procure the same to be insured on account of your orator, and to have the poli- cies of insurance thereon in the name of your orator, a copy of which letter, marked "A," your orator hereto annexes, and prays that the same may be taken as a part of this his bill of complaint. And your orator further shows that said J. E. afterwards, on the day of the same , in compliance with the request of your orator, did, through one H. M., of , broker, request one A. M., of the city of , and state of , insurance broker, to procure said insurance upon said ship and said freight, to be made and effected at some proper and solvent insurance company in said , or in , in said State of , and did cause to be transmitted to said A. M., insurance broker as aforesaid, a copy of your orator's said letter, bearing date the said ; and thereupon the said A. M. being unable to procure said insurance to be made and effected for a reasonable premium in said , did, in writ- ing, authorize and request one D. R., of said , commis- sion merchant, to cause said insurance to be 'made and ef- fected by some proper insurance company in said , which said written request and authority so given by said A. M. ta said D. R. was and is contained in two certain letters written by the said A. M. to said D. R.,' one of which letters bears date, etc., and the other of said letters bears date, etc.; and your orator hereto annexes copies of both said letters, marked respectively "B" and "C," and prays that the same may be taken as parts of this his bill of complaint. And your orator further shows that in said letter of said A. M., bearing date, the etc., by accident and mistake the said D. R., was directed to cause said ship to be insured for the sum of dollars, to be valued at the sum of dollars, and said freight to be insured at the sum of dollars, and 352 SUITS IN EQUITY. to be valued at the sum of dollars ; and in and by said letter of said A. M., bearing date the said , said mistake was in part corrected, and said D. R. was directed to insure said ship for the sum of dollars, and to insure said freight for the sum of dollars ; but by accident and mis- take the sum for which said ship and said' freight were to be valued thereon was wholly omitted. And your orator further shows that the said D. R., after receiving said letters on the , did apply to the said C. M. Marine Insurance Company to make insurance upon said ship and freight for your orators, according to the order and request of the said A. M., and did then and there exhibit both said letters of said A. M. to said insurance company, with the intent to inform said insurance company as well of the rela- tion of said A. M. as agent of the owners of the said ship as to enable them to determine the character of the risk to be insured, and said insurance company did afterwards read and examine said letters, and on the same day did agree with the said D. R., acting as agent of your orator, to insure the said ship on the voyage aforesaid, at and from said Q., for the sum of dollars, to be valued at the sum of dollars, and to insure the said freight of said ship on said voyage for the sum of dollars, to be valued at the sum of dol- lars, and to receive as premium therefor. the sum of dollars. And your orator further shows that thereafterwards, on the, etc., , the said insurance company, with the intent and design to carry into effect said agreement, did cause to be made a writing, or policy, of insurance, signed by the pres- ident and secretary, bearing date, etc., a copy of which is here- to annexed, and marked "D," which your orator prays may be taken as part of this his bill of complaint, and did deliver said policy to said D. R., the agent of your orator, as afore- said, and did receive from said D. R.,the agent of your orator, said premium of dollars, which sum was thereafterwards by your orator repaid to said D. R. BILLS IN SPECIAL CASES. 353 And your orator further shows that although, -when said insurance company had so agreed to insure said ship and freight for the amounts aforesaid, it was well known to said insurance company that said A. M. was merely the agent of the owner of said ship and of the person entitled to, and solely interested in,.said freight ; and that he, said A. M., had uo insurable or other interest whatever in either said ship or said freight, and that said A. M. was, by profession and pur- suit, a mere insurance broker, and that he was acting as the agent of the person who owned said ship and who was solely interested in said freight, and yet by accident and mistake said insurance on said ship and said freight was, by the terms of said policy, etc., declared to be on account of said A. M., and without adding thereto the word agent or any other term indicating that he, the said A. M., was insured as said agent of the party owning said ship and interested in said freight, and without the usual clause, commonly inserted in such poli- cies, that said insurance was effected for whom it might concern. And your orator further shows that said insurance company knew, and was distinctly informed by said D. R. by said letter of said A.' M. to said D. R., bearing date, etc., and sub- mitted to and read by them as aforesaid, that said A. M. was the mere agent of and broker for the owner of said ship, and had no interest whatever in ^aid ship or freight, except so far as he would be entitled to the usual commission of a broker for procuring said insurance ; and the said insurance company did agree, consent, and understand at the time said agreement to insure said ship and freight was made with said D. R., and before said policy so made to carry said agree- ment into effect was written and signed, that said insurance was to be made for the benefit and on account of the owner of said ship ; and that said A. M. was not the owner of said ship nor interested therein or in said freight, and that by mere inadvertence, accident, and mistake in writing said policy of insurance it was omitted to be inserted in said 354 SUITS IN EQUITY. policy that said insurance was made on account of said A. M. as agent and for whom it might concern. And your orator further shows unto your honors that said policy was received by the said D. R. and transmitted to the said J. E., the agent of your orator, and by him kept and retained in ignorance that by the terms and legal effect thereof no other interest was insured thereby save that of the said A. M., and in the full understanding as well by said A. M., said D. R., and said J. E., that the interest of your orator in said ship and freight, to the extent of the sums named in said policy, was thereby insured and protected, in accord- ance with your orator's directions contained in his said letter to said J. E., bearing date the said, etc. And your orator further shows, etc. [Here state the loss of, etc.] And your orator submits to your honors that, by reason of the premises, he is justly and equitably entitled to have said mistake so made in drawing said policy of insurance cor- rected, and said policy reformed by inserting therein that said insurance was made on account of A. M. as agent, or for whom it may concern ; and that the sums so insured by said company on said ship and said freight be paid to him ac- cordingly. And your orator further shows unto your honors that pre- viously to this suit being commenced, on the day of , and since, he applied to and requested, and caused applica- tion to be made to, said insurance company, to act towards your orator in such a way as is equitable and just, and to reform said policy as aforesaid, and to adjust and pay to him the sums so insured by them on sa'id ship and said freight, and so lost to your orator as aforesaid by reason of the perils insured against in said policy, and exhibited to said insurance company the usual and proper proofs of said agency of said A. M., and of said loss, and of his sole ownership of said ship and sole interest in said freight at the time of said agreement so made with the agent of your orator by said BILLS IN SPECIAL CASES. 355 insurance company to insure the same as aforesaid, and your orator well hoped that said insurance company would have yielded to his said applications and paid to him the sums so insured by them and lost by him as aforesaid. [Pray relief and process.\ (i) See No. 294, note 2. No. 297. To Enjoin the Obstruction of a River (i). The Circuit Court of the United States, District of . The United States of America, Plaintiffs, ) z'J. \ In Equity. The C. & D. Railroad Company, Defendant, j To the Honorable Judges of the Circuit Court for the District of . The United States of America, by their attorney, J. H., and under the direction of the attorney-general of the United States, the plaintiffs, respectfully show unto your honors that the defendant, the C. & D. Railroad Company, is a cor- poration, duly incorporated under the laws of the state of , and is a citizen and inhabitant of the district of , and having its chief office of business in the city of , in said state, where it is carrying on the business of a rail- road company, transporting freight and passengers, is unlaw- fully creating an obstruction, not affirmatively authorized by law, to the navigable capacity of the river, a public highway of commerce and intercourse between the states, and a river in respect to which the United States have juris- diction. Your orators further say that the said corporation, defend- ant, is in possession of, occupies and uses a certain lot and tract of land along the river bank, between the \fity water works] and the lower side of street, in the city of , county of , and state of , and which said lot of land 356 SUITS IN EQUITY. runs south to the edge and low- water mark of the river, and which said lot, with the buildings thereon, consisting of tracks, warehouses, and other superstructures, is and are used for the business of said railroad company, and which said land and premises form the bank and shore of the waters of the river. And your orators further show that the said corporation is casting, emptying, unloading, and suffering and causing to be cast, emptied and unloaded, large quantities of slate, gravel, rubbish, slags, earth, cinders, waste, refuse and other mate- rials into the said river, a navigable river of the United States, tending to impede and obstruct the navigation and the navigability of said waters of the United States ; and the said defendant is depositing and causing to be deposited, and suffering to be deposited and placed, large quantities of slate, stone, gravel, earth, rubbish, wreck, refuse, waste and other materials on the shore and bank of said river south of and upon the land occupied as the premises of the defendant, where the same is liable to be washed into the navigable waters of said river by the ordinary floods and rises of said river, to the permanent obstruction and detriment of its navigation, and contrary to the provisions of Section 6 of an Act entitled " An Act making appropriation for the construc- tion, repair and preservation of certain public works on rivers and harbors, and for other purposes," approved Sep- tember 19, 1890 (2), and to the irreparable injury, obstruction and detriment of the said river, for which your orators have no adequate remedy at law. And this casting, emptying and unloading of which your orators complain, is not for the purpose of being used in the building, repairing or keeping in repair any quay, pier, wharf,, weir, bridge, building or other work lawfully erected or to be erected on the banks on sides of said navigable river, or to the casting out, tmlading or depositing of any material excavated for the improvement of said river, or the deposit- ing of any substance above mentioned under a permit from BILLS IN SPECIAL CASES. 357 the secretary of war, in any place, designated by him where navigation would not be obstructed, as allowed and permitted as set forth in the proviso to section 6 of the act aforesaid. Your orators therefore pray that a writ of injunction may issue to the said C. & D. Railroad Company, perpetually en- joining it from making said obstruction, and creating and continuing to create said unlawful obstruction to the naviga- bility of the said waters of the river, and perpetually enjoining it from filling and dumping said material along the river bank between the \ciiy water-works] and the lower side of street, in said city, except so far as may be necessary to protect their railroad tracks from the wash of the river; and this last-named filling not to exceed a width of six feet beyond the outer rail of the tracks of said rail- road as now laid down; and if it shall be found by this hon- orable court that the defendant is creating and making the said unlawful obstruction to the navigability of the said waters of the river, as set forth in this bill, that the defendant be also ordered to remove the same ; and that a writ of subpoena may issue to said C. & D. Railroad Com- pany requiring it to answer, not under oath, this bill of com- plaint and the various matters therein set forth ; and that a temporary restraining order may issue enjoining it from fur- ther dumping or depositing the material as aforesaid, as specifically set forth in this paragraph, until the final hear- ing of this cause, and for other and further relief as may be proper in the premises. J. H., United States Attorney for the district of The United States of America, District of , ss. Now comes J. H., attorney for the United States, and says that he has read the foregoing bill of complaint, and believes the facts stated therein to be true. J. H. Sworn to before me and subscribed in my presence this day of , 1894. J. N., \_Seal.'\ United States Commissioner for said district. 358 SUITS IN EQUITY. (i) Taken from the record in U. S. vs. The Louisville & Nashville Railroad Company, in the Circuit Court of the United States for the Southern District of Ohio. (2) See 26 Stat, at I,., 426. No. 298. To Cancel Decree of Naturalization (i). \Captioii and address. '\ The United States, by W. H., their attorney-general, and J.H., the United States attorney for the district of , bring this their bill against C. D., a resident of the city of , in the district aforesaid, and an alien and subject of the of . And thereupon your orators complain and say that on or about the day of , 18 — , the said defendant, who was and now is an alien and subject of the of , ap- peared in the court, it then being a court of record of the state of , purporting to have common-law jurisdiction, and a seal and clerk, and at a term and session thereof then being holden in the city of , within the district aforesaid, and applied to be admitted a citizen of the United States. That thereupon said court, on the day and year last afore- said, entered up a decree purporting to admit said defendant to be and become a citizen of the United States, under the pro\isiou of section 3167 of the Revised Statutes of the United States, in and by which decree it is recited, among other things, that said defendant had proven to the satisfaction of the court, by the testimony of one S. T., that he had arrived in the United States a minor under the age of eighteen years ; that he had resided in the United States at least five years, including the three years of his minority, and in the state of at least one year immediately preceding his said ap- plication, and that for three years prior thereto it had been bona fide his intention to become a citizen of the United States. That thereupon a certain copy of said decree as aforesaid was BILLS IN SPECIAL CASES. 359 •delivered to said defendant, who ever since has claimed, by virtue of said pretended decree, and not otherwise, to be a duly naturalized citizen of the United States, and now claims that by virtue of said proceedings he is such citizen, and as such is entitled to all the rights, privileges and franchises of a citizen of the United States, and claims to be entitled to the protection of the United States as a citizen thereof. Your orators state and charge that it is not true that the said defendant was a minor under the age of eighteen years when he arrived in the United States ; it is not, nor was it then, true that he had resided in the United States for three years next preceding his arriving at the age of twenty-one years ; it is not, nor was it then, true that he had resided in the United States at least five years, including the three years of his minority; it is not, nor was it then, true that it had been bo7iafide his intention, for two years next preceding the date of his application, to become a citizen of the United States. And your orators further state and charge that the decree aforesaid was obtained by defendant from the court aforesaid by fraud and perjury, willfully and knowingly committed at and before the court aforesaid, which fraud and perjury was and is that the defendant introduced witnesses for the purpose of obtaining the said decree, who, having been duly sworn, willfully testified falsely in substance and to the effect follow- ing, to wit, that said defendant was under the age of eighteen years when he arrived in the United States, and that he had resided in the United States three years next preceding his arrival at the age of twenty-one years, whereas, as the said defendant and said witnesses well knew, such were not the facts, nor were any of such facts known to any of said witnesses. And your orators charge that the facts aforesaid, as to the qualifications of defendant, were not proven or made to appear to the satisfaction of the court aforesaid by the testimony of any witness who had any knowledge thereof, nor in any law- ful manner, nor by any competent or lawful testimony what- soever, and that said decree was based upon the fraudulent 360 SUITS IN EQUITY. and false testimony aforesaid, and said court was induced to render it by and through mistake as to the true facts, as well as by the fraud and perjury aforesaid, and the imposition practiced upon it by said defendant. And your orators further charge and represent that said defendant did then and there, on the hearing of his said ap- plication, make and cause to be made, in, to and before said last-named court, with the intent to procure and to aid iu procuring his naturalization as aforesaid, and the issue of the certificate of citizenship to him, a false statement, which was and is that the said defendant, at the time he arrived in the United States, was under the age of eighteen years, and had resided in the United States three years next preceding his arrival at the age of twenty-one years; whereas, in truth and in fact, as the said defendant then and there well knew, he was not, at the time he arrived in the United States, under the age of eighteen years, and had not resided in the United States three years next preceding his arrival at the age of twenty-one years. Your orators further charge and represent that for the purpose of obtaining said decree said defendant did then and there, on the hearing of said application, commit a fraud upon the plaintiffs and said court by then and there intentionally and knowingly concealing from said last-named court the facts that at the time he arrived in the United States he was over the age of eighteen years, and had not resided therein three years next preceding his arrival at the age of twenty- one years, and by then and there intentionally and knowingly failing and refusing to make known to said last-named court the facts that at the time he arrived in the United States he was over the age of eighteen years, and had not resided therein three years next preceding his arrival at the age of twenty-one years, and by then and there falsely pretending in, to, and before said last-named court that at the time he arrived in the United States he was under the age of eighteen years, and had resided therein three years next preceding his arrival at BILLS IN SPECIAL CASES. 361 the age of twenty-one years, and was then and there entitled to be admitted to become a citizen of the United States. Your orators further represent that the United States had no notice of the said application of said defendant nor of the hearing thereof, and were not represented thereat, and had no opportunity to contest the false and fraudulent claim of the defendant, but that the proceeding was entirely ex parte and not contested, by reason whereof the real facts in the matter were not presented to nor were they before the said last-named court on said hearing, and said court was imposed upon and induced by said false testimony offered by defendant, and mistake as to the real facts, and the aforesaid false and fraudulent pretenses and claims made By him and on his be- half, and suppression of the facts as aforesaid and by mistake of the facts, to then and there enter the decree aforesaid admitting said defendant to be a citizen of the United States under said application, the said defendant not being then and there entitled to be admitted to become such citizen either under such application or otherwise. And your orators also charge that at the time when he obtained said decree the defendant had not, as he well knew, at least two years prior to his pretended admission, made the declaration required by the first subdivision of section 2165 of the Revised Statutes of the United States, nor did he come within any of the exceptions or other provisions of the statutes of the United States entitling him to said decree. To the contrary, your orators charge that said defendant procured said decree, contriving and conniving to work a fraud upon the United States and upon the court by which the decree was granted, and that defendant accepted it, and still claims the benefits thereof, well knowing that he was not then and is not now entitled to it, or to the benefits thereof, and that the court had been imposed upon, and had been induced to issue it through mistake of the true facts as aforesaid, and through the fraud and imposition practiced upon it as aforesaid. And your orators further charge that the said pretended 3^2 SUITS IN EQUITY. decree of naturalization was procured, as defendant well knew at the time lie procured and accepted the same, without any compliance with the laws of the United States, and in fraud thereof, and your orators aver and. charge that the existence of the fraudulent decree on its face entitled the defendant to exercise the rights of a citizen of the United States, and to claim their protection, whereto he is not entitled, and if the same remains uncanceled and in force, it can be used in fraud of the United States, and of persons relying thereon as a valid decree. Your orators therefore pray that the said defendant may be compelled to answer all and singular the premises in this bill (but not under oath,* answer under oath hereby expressly waived). And your orators pray that the decree of naturaliza- tion aforesaid be declared null and void; that the said de- fendant be required to surrender up the certified copy thereof delivered to him; that he be forever restrained and enjoined from setting up or claiming any rights, privileges, benefits or advantages whatsoever under said decree ; and that your orators shall have, generally, such other and further relief as the circumstances and nature of the case may require. Therefore, that your honors will grant unto your orators the writ of subpoena issuing out of and under the seal of this court, to be directed to said C. D., commanding him by a certain day to appear before your honors, in the court aforesaid, and then and there answer the premises and abide the order and decree of the court. W. H., Attorney-General. J.H., U. S. Atty. Dist. of . R. X., of Counsel for Plaintifi". (i) U. S. vs. Norsch, 42 Fed. Rep. 417. BILLS IN SPECIAL CASES. 363 No. 299. To Enforce a Lien against a Distillery. The Circuit Court (i) of the United States in and for the District of . The United States of America, Plaintiffs, ] vs. > In Equity. C. D., Defendant. j To the Honorable Judges of the Circuit Court of the United States for the District of . The plaintiffs, the United States of America, respectfully show unto your honors that C. D. was engaged in the busi- ness of a distiller in the year of , in county, in the collection district of the state of ; and as such dis- tiller made returns to the assessor of said district, of spirits by him produced during the month of , 1894. And the assessor of said district, proceeding to inquire and determine if said C. D. had accounted for all the spirits produced by him during said month of , 1894, under and by virtue of section 20, of the act of Congress approved July 20, 1868, ascertained that the quantity of spirits returned by said C. D., as produced by him during said month, was less than eighty per centum of the producing capacity of his said distillery as estimated under the provisions of the act aforesaid. And thereupon the said assessor made an assessment upon said C. D. for the deficiency, amounting to dollars, which was thereupon placed in the hands of the collector of said district, and payment thereof demanded of the said C. D., yet the said assessment still remains due and unpaid, and is a lien upon the distillery and the lot of land upon which the same was situated, to wit: [Here set forth description of the property in full^ The plaintiffs further show that G. B., E. P., and S. G. have a mortgage lien upon the said premises, but on the day of , 18 — , they gave their consent in writing, duly acknowledged, that the lien of the United States for 364 SUITS IN EQUITY. taxes and penalties should have priority of their said mort- gage. Wherefore plaintiffs pray that due process issue, requiring said C. D. and A. D., his wife, G. B., E. P., and S. G. to ap- pear and answer this bill of complaint; that the said distil- lery and lot of land above described may be sold to satisfy said lien, and that plaintiff may have such other and further relief as may be just and equitable. J. H., United States Attorney, Solicitor for Plaintiffs. (i) The district court also has jurisdiction. See R. S., Sees. 563 and 3207. No. 3CX). Of Interpleader (i). (Old English Form.) Bill by a Les- see Against Different Persons, Claiming the Rents by Different Titles, to have them Interplead. \Caption and address.^ Humbly complaining, showeth unto your lordship your orator A. B., of, etc., that the mayor, citizens, and commonalty of the city of C, being seized as of fee, of and in the perpetual curacy of D., by indenture, etc. [State the demise from the corporation to the Reverend E. D., etc., clerk, a defendant here- inafter named, for life; and state the demise of the tithes from the said E. D. to the complainant; and also state a subsequent grant of an annuity out of the profits of the said perpetual cu- racy by the said E. D. to F. G., another defendant hereinafter named?^ And your orator further showeth unto your lordship that the said E. D., at the time of making the said last-men- tioned indenture or grant of annuity to the said F. G., and on or about the day of , in the year , was actually a prisoner in his majesty's King's Bench prison for debt, at the suit of one L,. M., and others his creditors ; and that on the day of , in the year , at a session then held at Horsemonger L,ane, in the parish of St. Mary's, Newing- ton, in and for the county of Surrey, the said E. D. applied to BILLS IN SPECIAL CASES. 365 be discharged and exonerated under and by virtue of a certain act of Parliament made and passed in the fifty-first year of the reign of his late majesty, entitled "An act for the relief of certain insolvent 'debtors'"; and the justices of the peace present at such sessions adjudged the said E. D. to be set at liberty, and he was discharged accordingly; and by virtue of the said act of Parliament, all the real and personal estate of the said E. D. was immediately after such adjudication there- by, and now is, vested in N. O., of, etc., Esq., the clerk of the peace of the said county of Surrey (another defendant here- inafter named), upon the trust, and for the purposes in the said act mentioned ; but the said N. O. has not hitherto made any conveyance or assignment thereof. And your orator further showeth unto your lordship that your orator, in pur- suance of the said indenture of demise so made by the said E. D., as aforesaid, duly paid the said rent of £ , thereby reserved for the said tithes, up to the day of last; and your orator has always been ready and desirous to pay the rent for the said tithes, which has become due since that period, to the person or persons duly entitled to receive the same ; and your orator hoped he should have been able so to have paid the said rent, and that no dispute could have airisen concerning the same, or at least that no suit would have been commenced against your orator in respect to the said rent; and that the said E. D., F. G., and N. O. would have settled between themselves their differences respecting the right to receive the said rent. But now so it is, may it please your lordship, the said E. D., F. G., and N. O. respectively claim to be entitled to the said rent; and the said E. D. has lately commenced an action in his majesty's court of common pleas at Westminster, for the recovery of the sum of £ , on account of the said rent, due from your orator since aforesaid. And the said E. D. pretends that he is discharged from the said annuity so granted by him as aforesaid, in con- sequence of his having taken the benefit of the said insolvent act, and that the interest of him, the said E. D., does not 366 SUITS IN EQUITY. vest in the said N. O. as such clerk of the peace as aforesaid^ by the operation of that act; and the said F. G. insists that he ought to be paid his said annuity out of the said rent now due from your orator, and that the said E. D. is not discharged from such annuity under or by virtue of such insolvent act^ but that the said annual rent, payable by your orator, still remains liable to the payment of such annuity, and he threatens and intends to proceed at law against your orator, unless the said annuity be paid by him out of such rent. And the said N. O. pretends and insists that all the said estate, right and interest in the said tithes vested in him, the said N. O., as such clerk of the peace as aforesaid, by the opera- tion of the said insolvent act, and that he is therefore entitled to receive the said rent of £ , payable by your orator, which he insists is no longer liable to the payment of the said annuity. And your orator, under the circumstances aforesaid, is in danger of being greatly harrassed on account of the said rent, and can not safely pay the same without the aid of this honorable court. And that the said E. D., and F. G., and N. O., respectively, may set forth to whom the said rent is due and payable, and may be decreed to interplead and adjust the said several claims and demands between themselves, your orator hereby offering to account for and pay the arrears of the said rent now due from him to such of them, the said E. D., F. G., and N. O., as the same shall appear of right to- belong and be payable, on being indemnified by this honora- ble court in so doing, or to pay the same into the hands of the accountant-general of this honorable court, to be disposed of as this honorable court shall direct. And that the said E. D. may be restrained by the order and injunction of this honorable court from further prosecution of the said action so commenced by him against your orator as aforesaid, and. that he, and the said F. G, and N. O., respectively, may in like manner be restrained from all other proceedings at law whatsoever, touching the matters in question in this suit, or any of them. \And for general relief?^ May it please, etc.. BILLS IN SPECIAL CASES. 367 [End with praying an injunction in the terms of the prayer y and also a subpoena against the said E. D., F. G., and N. <9.] (i) Where two or more persons whose titles are connected by reason of one being derived from the other, or of both being derived from a common source, claim the same thing, debt, or duty by different or separate interests from a third person, and he, not knowing to which one of the claimants he ought of right to render the debt or duty, or to deliver the thing, fears that he may be hurt by some of them, he may maintain a suit and obtain against them the remedy of interpleader. In his bill of complaint he must state his own rights and their several claims, and pray that they may interplead, so that the court may adjudge to whom the debt, thing, or duty belongs, and he may be indemnilied. If any suits at law have been brought against him he may pray that such proceedings be restrained until the right be determined. Mitford's Eq. PI., pp. 58, 59. If the party has in anyway made himself liable, even for the same demand, to two claimants, he can not have a bill of interpleader ; for it is absolutely necessary to enable him to file the bill that he should be liable to one of the two claimants. Crawford vs. Fisher, i Hare, 436-441; East & West India Dock Co. vs. Littledale, 7 Hare, 57-60; Greene vs. Mumford, 4 R. I., 313 ; Pfister vs. Wade, 56 Cal., 43. For particulars with reference to Bills of Interpleader in Federal Practice, see Beach's Modern Eq. Prac, Sec. 141 et seq.; Foster's Eq. Prac, Sees. 88 and 89. No. 301. Prayer of a Bill of Interpleader. And that the said several defendants may be decreed to interplead touching their said several claims, and that plain- tiff may be at liberty to pay the several sums now justly and fairly due from him for the rent of the said messuage or tenement and premises into the bank, in the name and with the privity of the accountant-general of this honorable court, in trust for the benefit of the persons or person entitled thereto, subject to the further order of this court, after deducting thereout in the first place the aforesaid sum of ^36, to be allowed unto plaintiff, for repairs pursuant to the said agreement, together with all sums of money expended 3^8 SUITS IN EQUITY. and advanced by plaintiff for land tax and other necessary outgoings in respect of the said premises. And that plain- tiff may be at liberty to quit the possession of the said premises, and that possession thereof may be delivered up to such person or persons as this honorable court shall direct or appoint. And that plaintiff may have a satisfaction or allowance made unto him out of the rent of the said premises for the several articles hereinbefore and in the said first agreement particularly mentioned, which have been provided by plaintiff at his own expense for the said premises. And that in the meantime the said defendants, S. O. and T. C, may be restrained by the order or injunction of this honor- able court from all further proceedings in the aforesaid action of ejectment brought against plaintiff, and that they and all the said other defendants may be in like manner restrained from making any distresses or distress upon the said messuage or tenement and premises, and from com- mencing or prosecuting any action or actions at law agains^ plaintiff to recover the rent of the said premises, or to turn plaintiff out of possession thereof, or otherwise from pro- ceeding at law against plaintiff touching any one of the matters aforesaid. And that all proper and necessary direc- tions may be given for the purposes aforesaid. [And for further relief^ No. 302. Form of Affidavit to be Annexed to a Bill of Inter- pleader. The said J. C. maketh oath and saith that he has exhib- ited his bill of interpleader against the defendants in this cause without any fraud or collusion between him and the said defendants, or any or either of them ; and that he, the said J. C, hath not exhibited his said bill at the request of the said defendants, or of any or of either of them, and that he is not indemnified by the said defendants, or by any or BILLS IN SPECIAL CASES. 369 either of them, and saith that he has exhibited his, said bill with no other intent but to avoid being sued or molested by the said defendants, who are proceeding or threaten to proceed at laiw against him for the recovery of the rent of the said tithes in the said bill mentioned. Sworn, etc., J. C. No. 303, Another Form of AfHdavit. A. B., the above-named plaintiff, maketh oath and saith that he doth not in any respect collude with either of the above-named defendants touching the matters in question in this cause, nor is he in any manner indemnified by the said defendants, or either of them, nor hath he exhibited his said bill of interpleader at the request of them, or either of them, but merely of his own free will, and to avoid being sued or molested touching the matters contained in his said bill. Sworn, etc., A. B. NO. 304. Still Another Form. I, A. B., the above-named plaintiff, make oath and say that the bill in this suit [or, the bill hereunto annexed] is not filed by me in collusion with any or either of the defend- ants in the said bill named, but such bill is filed by me of my own accord for relief in this honorable court. Sworn, etc., A, B. No. 305. Against an Agent for Mismanagement. [^Capizon, address, and introductiori\. That in the month of he was the owner of a certain ship or vessel called the , then lying in the port of , 370 SUITS IN EQUITY. bound on a voyage to , in the state of — ^, and that being desirous to procure a cargo of goods and merchandise to be carried to said , in said vessel on freight, he ap- plied to said C. & D., who were engaged in that line of busi- ness, to obtain a cargo for said vessel on freight, and, as a compensation for their services in so doing, agreed to pay them a commission of five per centum on the amount of the freight and primage of such goods and merchandise as they should procure to be shipped on board of the said ship, in consideration of which they agreed to act as his agents in the premises, and to make use of their knowledge, skill and ability to procure a full cargo for said vessel on freight, and that accordingly the lading and procurement of freight were intrusted to them, and in said month of , and the ensu- ing months of and , they did procure a cargo for said vessel, and in the month of she set sail and departed on her voyage for said . That on or about the day of said , said C. & D. sent to your orator a freight list, or statement of the amount of merchandise laden on board of the said vessel, and of the rates of freight thereof, and of the sums of money to be earned and paid on the carriage and delivery thereof at said port of (which said freight list your orator prays leave to file in court as a part of this bill), by which it appears that all the merchandise laden on board of the said ship was shipped at specific rates of freight therein set down, and that the total amount of freight, including primage, was the sum of dollars, upon which sitm the said C. & D. claimed of your orator, and he paid to them, a commission of five per centum, amounting to the sum of dollars, together with other charges for advertising, and so forth, as by their bill here- with also filed, in the full belief, and relying on the assur- ance of the said C. & D., made by sending him the said freight list and otherwise, that the merchandise therein mentioned had been actually laden on board of the said vessel, to be carried and delivered at and for the rates of freight therein specified. BILLS IN SPECIAL CASES. 37 ^ That the said ship was consigned to certain persons doing business at said , under the firm of S. & M., who, upon the arrival of said vessel in the month of , attended to _ the unlading and discharge of the cargo, the collection of the freight and the remittance thereof to your orator. That upon such discharge and delivery it appeared that fifty-seven m-l tons of pig-iron, which in the said freight list were specified as shipped at the rate of dollars per ton, and the freight of which was therein stated to amount to dollars, and one hundred and thirty-three nests tubs, two hundred nests tubs, and seventy-five dozen pails, which in said freight list were specified as shipped at and for the freight or compensation of dollars, were not shipped at such rates of freight, but the rate of freight specified there- for in the bills of lading thereof (which were not signed by the master of said ship, but by the said C. & D., who assumed to act as his agent in that behalf without his knowledge or consent) was '■'■ one-half net profits over costs and charges'''' ; that the said iron, tubs and pails, as your orator is informed and alleges, could not be sold at any profit, and that the said S. & M. did not collect, and your orator has not received, any freight or compensation for the carriage and delivery thereof at said . That upon receiving information from the said S. & M. of the fact that said iron, tubs and pails were shipped on half profits instead of the rates of freight stated in said freight list, your orator immediately advised the said C. & D. that he held them responsible for the amount of freight at which they had represented that the same were shipped, and upon which they had charged and been paid their full commission, and requested payment thereof, which they refused to make. That the commission, agency and trust, for which your orator retained said C. & D., was to procure a cargo for said vessel to be carried and delivered on payment of freight in money at specified rates, and not upon half profits ; that the said C. & D. represented to your orator that they had ob- 372 SUITS IN EQUITY. tained and shipped a cargo, upon the delivery of which your orator would be entitled to receive the sums of money as .freight thereof specified in the said freight list; that said C. & D. demanded of your orator a commission on the amount thereof, as so shipped, and that your orator paid them said commission, in the full belief and relying upon their assur- ance, contained in said freight list, that the various articles therein mentioned were shipped at the rates of freight therein specified, and that upon the safe delivery thereof your orator would be entitled to receive the same in money. That the said iron, tubs and pails were safely carried to , and delivered to the consignees thereof, and that upon such delivery your orator had earned and was entitled to be paid for such service the rates of freight and sums of money specified in the said freight list, the same being the usual and current rates of freight upon the amounts of which, as such, the said C. & D. charged their commissions as afore- said; that by reason of their undertaking to carry and de- liver the same upon half profits instead of on freight your orator has lost the sums of money to which he should have been entitled, and to which the said C. & D. represented that he would be entitled, on the delivery thereof, and has not re- ceived and is not entitled to claim, by reason of their said doings, any compensation from the owners or consignees of the said goods and merchandise for the cost and expense of their transportation and delivery; and that by reason of the premises, and of the representation made that the said goods and merchandise were shipped at the rates of freight speci- fied in the said freight list, the said C. & D. are bound to make good the loss your orator has suffered by their said doings, and to pay to him the sums of money which he would have received if the said goods and merchandise had been shipped at the rates specified in said freight list, and your orator has repeatedly requested them so to do. But now so as it is, may it please your honors, that the said C. & D. absolutely refuse to comply with such re- quest. BILLS IN SPECIAL CASES. 373 To the end, therefore, that they, the said C. & D., may be decreed to pay to your orator the said sums of dol- lars, and (i) dollars, and such losses, damages and interest as your orator has suffered by reason of the premises, and that your orator may have such other relief as the nature of his case may require, and that the said C. & D. may, if they can, show why your orator should not have the relief hereby prayed, and may upon their several corporal oaths, and to the best of their knowledge and belief, make answer to all and singular the premises. May it please your honors to grant unto your orator a writ of subpoena, directed to the said A. C. and A. D., com- manding them at a suitable time and place to appear before your honors to make answer to the premises, and to abide by and perform such order and decree as to your honors shall seem meet. A. B. X. & X., Solicitors for Plaintiff. [Verification. See No. 279. J (l) See No. 294, note 2. No. 306. Bill to Enjoin a Combinatioil under Sherman Anti-Trust Act (i). The Circuit Court of the United States for the Southern Di- vision of the Eastern District of Tennessee. IN EQUITY. To the Judges of the Circuit Court of the United States for the Division of the District of . The United States, by the Attorney-General of the United ■ States, and J. H., the United States Attorney for the District of , brings this its petition against The Addyston Pipe & Steel Company, a corporation charter- ed by and doing business under the laws of the state of 374 SUITS IN EQUITY. Ohio, and a resident of said state, with its principal office in the city of Cincinnati, in said state; Dennis Long & Co., a corporation (or partnership) chartered by and do- ing business under the laws of the state of Kentucky, a resident of said state, with its principal office in the city of Louisville, Kentucky; Howard-Harrison Iron Com- pany, a corporation chartered by and doing business un- der the laws of the state of Alabama, and a resident of said state, with its principal office at Bessemer, Alabama; Anniston Pipe & Foundry Company, a corporation char- tered by and doing business under the laws of the state of Alabama, and a resident of said state, with its prin- cipal office at Anniston, Alabama; South Pittsburg Pipe Works, a corporation chartered by and doing business under the laws of the state of Tennessee, and a resident of said state, with its principal office at South Pittsburg, Tennessee; Chattanooga Foundry & Pipe Works, a cor- poration chartered by and doing business under the laws of the state of Tennessee, and a resident of said state, with its princapl office at Chattanoga, Tennessee. Petitioner charges: First. That defendants, and each of them are and have been for several years engaged in the manufacture of cast iron pipe, a commodity in general use by the public through- out the country, and necessary for drainage and sewerage purposes, and used especially by gas and water companies and by municipal corporations. Second. Defendants are all residents of that portion of the country where pig iron and fuel and all elements enter- ing into the production of cast iron pipe are cheaper, and where said cast iron pipe can be made at less cost to the man- ufacturer than any place else. Third. Petitioner further charges that defendants are the only persons engaged in the manufacture of cast iron pipe, and who have capacity to supply the demand and fulfill the BILLS IN SPECIAL CASES. 375 contracts, in the following states and territories, to wit: Alabama, Arizona, California, Colorado, North Dakota, South Dakota, Florida, Georgia, Idaho, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Indian Territory, North Carolina, South Carolina, New Mexico, Minnesota, Michigan, Tennessee, Texas, Illinois, Wyoming, Indiana, Ohio, Utah, Washington, Oregon, Iowa, West Vir- ginia, Nevada, Oklahoma and Wisconsin, being 36 states and territories, and embracing that portion of the United States that is most rapidly developing, and where said cast iron pipe is most largely used. There are a few other pipe works lo- cated in the above territory, but for want of capacity they are unable to compete with defendants, and by reason of the con- duct on the part of defendants hereinafter mentioned, they have been practically driven out of the market in said terri- tory. Fourth. Petition charges, upon information that it be- lieves to be true, that defendants, in order to monopolize the trade in cast iron pipe, especially in the above-named states and territories, and force the price of the same to an unrea- sonable and exorbitant rate, and destroy all competition in regard thereto, and force the public to pay exorbitant and unreasonable prices for said cast iron pipe, did, on or about the 28th day of December, 1894, in the city of Chattanooga, Tennessee, by and through their regular, appointed and qual- ified officers, agents and representatives, enter into a contract or combination, in the form of trust or conspiracy, in re- straint of trade or commerce among the several states and ter- ritories above named, in regard to the manufacture and sale of said cast iron pipe, which said fraudulent and criminal con- spiracy was entered into in violation of law, and in defiance of the same, and was intended by defendants to enable them to defraud the public in the purchase and use of the pipe man- ufactured by them. The name of this criminal and unlawful conspiracy is the " Associated Pipe Works," and its members 376 SUITS IN EQUITY. are the defendants above named. Petitioner charges, upon^ information and behef, that defendants are now, and have been since said 28th day of December, 1894, operating their shops in obedience to and according to the agreement en- tered into on said date, and are now engaged in selling and shipping from their shops said cast iron pipe into other states, and territories than the states and territories in which defend- ants reside, and under contracts entered into with citizens, of such other states and territories. Fifth. Petitioner further charges that it was a part of said, fraudulent and criminal combination and conspiracy afore- said, that there should be no competition among defendants as to any work done or pipe furnished in any of the states and territories above named, and in order to make effectual this criminal purpose, it was agreed that upon all work done in the territory named, a "bonus" should be charged on every ton of pipe sold, the amount of said " bonus " being deter- mined by how much the combination could force the customer to pay, and petitioner here charges that defendants have col- lected a " bonus " ranging from three to nine dollars on every ton of pipe sold since the date the trust was formed. The " bonus " represents the amount charged for pipe over and above a reasonable and fair price for same, and above the price that defendants would be willing to sell for, if the trust, or combination did not exist, and they have to compete with each other for the work. Petitioner charges that the output of the shops belonging- to the six defendants above named, amounts to about 220,000 tons of pipe annually, and this multiplied by the average. " bonus " received, of six dollars per ton, amounts to one million three hundred and twenty thousand dollars, so your honors may get some idea of the immense benefits derived by defendants from their fraudulent, criminal and unlawful com- bination, and see to what extent the public has been, and is. BILLS IN SPECIAL CASES. 377 being, robbed and plundered by reason of the existence of the trust aforesaid. Petitioner is informed and believes, and upon such informa- tion charges, that the amount of pipe sold and shipped by- defendants for this year, 1896, will exceed said amount of 220,000 tons, nearly all of which has been sold and shipped according to the terms and under the agreement entered into between defendants on said 28th day of December, 1894;. and defendants are still and now engaged in the sale and ship- ment of the same to the states and territories other than in which they reside. Sixth. The above-named states and territories were desig- nated by defendants in their conspiracy as " pay territory " and all territory not included in the above was called " free territory.'' In " pay territory," except as to certain cities, known as " reserved cities " where all the pipe was to be fur- nished, by some particular shop, a " bonus " of so much per ton was fixed on all pipe sold and either of defendants were allowed to solicit work and furnish pipe at any price it saw proper, but it had to account to the pool or trust, for the "bonus" agreed upon for that particular state. It made no difference at what price the work was done, and these "bo- nuses " were remitted from one to another every two weeks, each sharing in the profit represented by the " bonus," al- though they may have had nothing to do with the work. This arrangement kept one from competing with the other, the in- centive not to do so being that they would divide the " bonus " received, and, as petitioner charges, prevented the public from obtaining the pipe at a fair and reasonable price. Seventh. To make said fraudulent and unlawful criminal conspiracy effectual, and in order to deprive, the public of their right to obtain said cast iron pipe at a fair and reason- able price, petitioner further charges that it was a part of the agreement that defendant should, at once, notify all parties to whom they had made quotations, withdrawing the same, and 378 SUITS IN EQUITY. accept no orders after that date on quotations sent out be- fore the conspiracy was entered into, and petitioner charges that said defendants did, at once, withdraw said quotations where they had sent them out, and at once prepared new quotations for the territory embraced in their combine, ad- vancing the price of pipe from three to nine dollars on every ton, and this too, at a time of untold financial depression, and when there had been no increase in the wages of labor, or the cost of any of the materials used in the manufacture of said pipe, and they have been receiving this price for their pipe from that date to the present time. Eighth. It was furthermore a part of said fraudulent com- bination, which petitioner avers has been strictly carried out, that all the pipe for certain cities in the above-named territory was to be divided between defendants. For instance, An- niston Pipe Works was to supply Atlanta ; Howard-Harrison Iron Company, Birmingham and St. Louis; Chattanooga Foundry & Pipe Works, Chattanooga and New Orleans; South Pittsburg Pipe Works, Omaha; Dennis Long & Co., Louisville and certain cities in Indiana; while Addyston Pipe & Steel Co. was to supply Cincinnati and certain other cities in Ohio and Kentucky. Petitioner does not pretend to give all the cities allotted under said criminal agreement. Petitioner charges that when an inquiry was received by defendants for work in any of the " reserved cities " they, of course, knowing which of defendants was to have the job, would at once ask the defendant to whom the city was al- lotted what price to "protect," as it was called, meaning thereby to ask said shop to notify it what its bid would be, so that a higher bid might be sent in. On receipt of such an inquiry the defendant that was to do the work would at once notify all the other defendants the price it intended to bid, or at which it wanted " protection," and the other defendants would each send in a bid at some higher figures, insuring the job to the defendant agreed upon, and insuring to themselves BILLS IN SPECIAL CASES. 379 a division of a large " bonus " and making the price to the consumer unfair and unreasonable, and destroying all competi- tion in regard thereto. Ninth. Petitioner further shows and charges that the kinds of contracts secured by defendants are, in the main, contracts to furnish pipe to gas and water companies, and to municipal corporations for sewerage and other purposes, which said contracts, after advertisements for bids, are let to the lowest bidders. Petitioner would show to the court that said gas and water companies and said municipal corporations, together with the public generally, being entirely ignorant of the fraudulent and unlawful manner by which defendants make their bids and secure said contracts, and having been so ig- norant since said combination was entered into, and having no knowledge of such combination, have been applying in good faith to each of defendants to furnish a bid at which it would do certain work, and since said date of Dec. 28th, 1894, said defendants have been fraudulently and criminally securing about the entire work in the territory named, and at the ex- orbitant and unreasonable prices above mentioned. Tenth. Petitioner charges upon information it believes to be true, that there are no other pipe works in the territory where the conspiracy exists between defendants, that were able to handle the large contracts for pipe which defendants have secured since the combination existed, by reason of the want of capacity and money to carry on said work on the part of such shops not in' the combination. Petitioner further shows and charges that defendants have large sums of money, aggregating many millions of dollars, invested in the manufacture of pipe, and are able, many of them alone, to fill contracts of any size, and in fact have fur- nished pipe where the job amounted to over one hundred thousand dollars, and by reason of the fraudulent and unlaw- ful manner in which they secured the contract, have divided a " bonus " of not less than seven dollars on each ton of pipe 380 SUITS IN EQUITY. furnished in said large contracts, so petitioner charges that by reason of the great wealth of defendants, and the inability of any and all others engaged in manufacturing pipe in the territory above named, and by reason of the unlawful means resorted to by defendants, they have created a monopoly in the sale of cast iron pipe in said territory and have crippled and destroyed all smaller concerns engaged in the manufacture of pipe. Eleventh. Petitioner would further show to the court, and charge that defendants, on or about the 27th day of May, 189s, to enable them to realize greater profits to themselves on the sale of their pipe, and to make the monopoly in their territory on the use and sale of the same, more complete, and to more fully effectuate the conspiracy entered into on said 28th day of December, 1894, adopted what they called the " Auction Pool " plan for bidding on work in .the " pay terri- tory." To carry this out, each of defendants selected one man, and the six men selected constituted an executive com- mittee, which said committee was to be located in some central city, at present at Chicago, to whom all inquiries for pipe were to be referred. On receipt of such inquiry, this committee, in a room with no one present but themselves, se- cretly and fraudulently bid for the job, the one agreeing to pay the greatest amount of "bonus " of course to receive it. By this secret, and fraudulent and criminal manner, petitioner charges all the work done by defendants since June i, 1895, has been secured. After this " auction pool " was over, as to each particular job, each of the defendants was notified whose representative had bid the most, and the amount of the bid, and this bid was sent by the defendant securing the job at the " auction pool " to the party wanting the pipe, the other de- fendants all sending in a bid for a higher price, carrying out their criminal agreement to " protect " each other, and secur- ing the job to the highest bidder at the " auction pool," thus reversing the order of things, by giving the job to the highest, BILLS IN SPECIAL CASES. 38 1 instead of the lowest bidder, the deluded customer of course being ignorant as to the manner in which he is being swindled. Twelfth. As an example of the unequaled and unmitigated criminal conduct on the part of defendants, and the great amounts of money they have swindled the public out of, by reason of their trust and criminal conspiracy, petitioner will give one instance, among the many hundred, which it charges to be true in every particular : The municipal corporation of the city of St. Louis, Mo., wanted about 5,000 tons of cast iron pipe during the early part of the present year of 1896. Under the " auction pool " system, as petitioner is informed and believes, and so charges, the "reserved cities," hereinbefore mentioned were left practically the same as under the fixed " bonus " system, there being a different arrangement agreed upon as to the " bonus," in some way, but the pipe for the particular cities named to be supplied as originally agreed upon. Under the agreement, the pipe for the city of St. Louis was still to be furnished by defendants, Hoard-Harrison Iron Company. Allowing a reasonable and fair profit, the price of the pipe wanted by St. Louis was at that time, at the shops at Bessemer, Ala., from $13 to $15 per ton. The freight to St. Louis from Bessemer was $3 per ton, so that de- fendant, Howard-Harrison Iron Company, could afford to sell said 5,000 tons of pipe delivered in St. Louis at from $16 to $18 per ton. The city of St. Louis made inquiry of defend- ;ants for the pipe, and requested them to send in bids for the work, and when said inquiries were received by defendants they were at once forwarded to the " auction pool " for the mysterious action of the executive committee aforesaid, acting for defendants. The character of the bidding at this " auction pool," and behind closed doors, is not known to petitioner, and whether the same was free, fair (?) and open, and very animated, and whether each defendant, as represented by its member of said executive committee, was taking care of itself, or whether all were bent and united on swindling the city of 382 SUITS IN EQUITY. St. Louis to their common profit, may never be known; but one thing is certain, and petitioner so charges, defendant, Howard-Harrison Iron Company was the highest bidder at the " auction pool " and the job was knocked down to it at the price of $24 per ton, and thereupon it sent in its bid at this price. All the other defendants sent in bids of " protec- tion " at a higher figure. Petitioner further charges that when the bids were received by the city of St. Louis, they were opened and compared, in good faith, by a committee that rep- resented the people of the- city of St. Louis, and who were anxious to procure the pipe for this large contract at as low price as possible; and petitioner charges that said city of St. Louis was utterly ignorant as to the conspiracy between de- fendants and is ignorant of the fraudulent and corrupt means adopted by them, whereby all competition in bidding for the job had been destroyed, and ignorant of the complete monop- oly that defendants had brought about in the territory above named, which said monopoly petiticfner charges was so com- plete and brought about by the means aforesaid, as to prevent other persons and corporations from engaging in fair com- petition with them in the sale of said cast iron pipe, and insured to defendants almost the exclusive right of dealing in the same, and appropriating to themselves said exclusive privilege, and restricting and restraining others in the exercise of the right that was open to them before this criminal conspiracy and unlawful and unauthorized trust was entered into be- tween defendants. So that the contract was awarded to de- fendant Howard-Harrison Iron Company at the price of $24 per ton delivered in the city of St. Louis. Petitioner charges that a fair and reasonable price for this pipe was only $16 to $18 per ton at that time, and in fact defendants were selling the same at this price in " free territory," where they had com- petition, and where that conspiracy did not. exist, on the iden- tical date at which the sale was made to the city of St. Louis. Petitioner shows to the court and charges that the extor- BILLS IN SPECIAL CASES. 383 tion in this single contract, and the profit realized to defend- ants in the shape of " bonus," which was divided between them, amounted to between $30,000 and $40,000, and this is only one contract among the hundred which petitioner charges were secured in the same way. Petitioner charges that the pipe for this contract was shipped from Bessemer in the state of Alabama to St. Louis in the state of Missouri, and de- fendants are now severally engaged in shipping pipe to other states than the states in which they reside under and in pur- suance of the conspiracy aforesaid. Thirteenth. Petitioner charges upon information that it be- lieves to be true, that the defendants, Howard-Harrison Iron Company, Anniston Pipe & Foundry Company, South Pitts- burg Pipe Works, and Chattanooga Foundry & Pipe Works, some time prior to December 28, 1894, had entered into a contract or combination in the form of a trust or conspiracy in restraint of trade and commerce between the several states, which was similar in terms to the conspiracy entered into on said 28th day of December, 1894, and the four defendants last named had been operating under the same prior to that date, but in order to make their monopoly complete the two other defendants were admitted to the trust on said 28th day of December, 1894, and the purpose of admitting them was to destroy all competition between them and insure a complete monopoly in the sale of pipe, and all of defendants herein are now operating under said trust. Fourteenth. Petitioner charges that the contract, combina- tion, trust or conspiracy aforesaid, under which defendants are now operating is in restraint of trade and commerce be- tween and among, the several states and has resulted in a monopoly to them in the manufacture and sale of cast iron pipe in the territory named ; is an unlawful combination, trust and conspiracy, and in open violation of the Act of Congress of July 2, 1890, and petitioner brings this suit to restrain the violation hereinbefore set forth and prevent defendants 384 SUITS IN EQUITY. from continuing the sale and transportation of said cast iron pipe from the states in which they reside into other states and for the purposes of having any of said cast iron pipe, belong- ing to either of said defendants and being in course of trans- portation by them or either of them from one state to another, forfeited to petitioner and seized and confiscated as provided by law. Fifteenth. Petitioner further charges that inasmuch as the conspiracy aforesaid was entered into in this division and dis- trict of your honor's court and defendants are all parties to the same, that the ends of justice require that they each be brought before the court in answer to this petition. Wherefore your petitioner prays: First. That it be allowed to file this petition, and upon the filing of the same, that under the fiat of your honor an in- junction or restraining order be granted enjoining and re- straining defendants or either of them from selling and trans- porting cast iron pipe into other than the states in. which they reside under any contract or agreement, entered into with citizens of such other states, by virtue of the combination, trust or conspiracy now existing between the defendants. Second. That each of the defendants be made parties hereto, by subpoena directed to the marshal of the district where they reside, accompanied with a copy of such injunction or re- straining order as your honor may grant. Third. That defendants be required to answer this petition fully but not on oath, as their answers under oath are waived. Fourth. That all cast iron pipe sold and transported by de- fendants after this date, under and in pursuance of the com- bination, trust and conspiracy, charged in this petition, to any other state than the state in which the defendant so selling and transporting said cast iron pipe resides, be forfeited to your petitioner, and seized and confiscated in the manner provided by law. Fifth. And upon the hearing let a decree pass dissolvmg BILLS IN SPECIAL CASES. 385 the trust, combination and unlawful conspiracy now existing between defendants and perpetually enjoining them from ope- rating under the same and from selling and transporting said cast iron pipe into other states than in which they reside. Petitioner prays for general relief, and states that this is the first application for extraordinary process in this cause. J. H., U. S. Attorney for the District of . State of , County. J. H. makes oath that the facts stated in the foregoing petition as of his own knowledge, are true, and those stated on information he believes to be true, and that he brings this petition under the direction of the Hon. Judson Harmon, Attorney General of the United States. J. H., Sworn to and subscribed before me, this day of , A. D. . F. X., [SM.I Notary Public. (i) Taken from the record in Addyston Pipe & Steel Co. vs. U. S. 17s, U. S. 211. Cases decided under the Sherman Anti-Trust Law, or relating thereto (Act of July 2, 1890, 26 Stat, at L. 209). American Biscuit Company vs. Koltz 44 F. R., 721 Anderson vs. United States (United States vs. Anderson) . 171 U. S., 604 Bement vs. National Harrow Company 186 U. S., 70 Bishop vs. American Preserves Company \ ' '' I IDS F. R., 84s Blindell vs. Hagan | 54 F. R., 40 Charles E. Wiswall, The, vs. Sc0i.„ 5 56 F. R., 696 74 F. R., 802 86F.R.,67i City of Atlanta vs. Chattanooga Foundry and Pipe Com- pany loi F. R., 900 Connolly vs. Union Sewer Pipe Company 184 U. S., 540 Cravens vs. Carter-Crume Company 92 F. R., 479 Delaware, Lackawanna and Western Railroad Company vs. Frank no F. R., 689 Dennehy vs. McNulta 86 F. R., 825 386 SUITS IN EQUITY. Dueber Watch Case Manufacturing Company vs. Howard ( 55 F. R, 851 Watch and Case Company ( 66 F. R., 637 Farmers' Loan and Trust Company vs. Northern Pacific Raih-oad Company 60 F. R., 803 102 F. R,, 594 107 F. R., 210 118F. R., 120 Gibbs vs. McNeeley (red cedar shingle trust) Recent decision (October 13, 1902) in the Circuit CoUrt of Appeals, ninth circuit, not yet reported. Will probably appear in Greer, Mills & Co., vs. Stoller 77 F.R.,i Gulf, etc.. Railway Company vs. Miami Steamship Com- pany 86 F. R., 407 Hagan vs. Blindell. (_See Blindell vs. Hagan.) Hopkins vs. United States (United States vs. Hopkins, 82 F. R., 529; 84 F. R., 1018) 171 U. S., 578 In re charges to the grand jury ■. . . .62 F. R., 834, 840 In re Corning 51 F. R., 205 In re Debs, petitioner (United States vs. Debs, 64 F. R., 724) 158 U.S., 564 In re Greene 52 F. R., 104 In re Terrell 51 F. R., 213 Lowenstein vs. Evans 69 F. R., 908 [■ 98F. R.,817 Lowry vs. Tile, Mantel and Grate Association of California J 106 F. R. 38 [ii5F.R.,27 Montague, W. W., & Co. vs. Lowry 115 F. R., 27 Moore vs. United States 8sF. R.,465 76F.R.,667 National Harrow Company vs. Hench \ 83 F. R., 36 84 F. R., 226 67 F. R., 130 74F.R.,236 Pidcock vs. Harrington 64 F. R., 821 Prescott and Arizona Central Railroad Company vs. Atchi- son, Topeka and Santa Fe Railroad Company 73 F. R., 438 Southern Indiana Express Company vs. United States Ex- ( 88 F. R., 659 press Company \ 92 F. R., 1022 Strait vs. National Harrow Company 51 F. R., 819 Thomas vs. Cincinnati, New Orleans and Texas Pacific Railway Company 62 F. R., 803 f 78F. R.,712 United States vs. Addyston Pipe and Steel Company 85 F. R., 271 175 U.S., 211 United States vs. Agler 62 F. R., 824 United States vs. Anderson 171 U. S., 604 United States vs. Cassiday 67 F. R., 698 National Harrow Company vs. Quick \ BILLS IN SPECIAL CASES. 3^7 United States vs. Coal Dealers' Association 8s F. R., 252 ( los F. R., 93 United States vs. Chesapeake and Ohio Fuel Company / tic F R. 610 United States vs. Debs (In re Debs, petitioner, 158 U. S., 564) 64 F. R., 724 United States vs. Elliott ] , t- r. ' _ ( 64 F. R., 27 United States vs. Greenhut et al 50 F. R., 469 f 82F. R.,S29 United States vs. Hopkins et al J 84 F. R., 1018 1 171 U. S., 578 United States vs. Jellico Mountain Coal and Coke Company^ ^^ ,,'„'' ( 46 F. R., 432 ( 76F.R.,89S United States vs. Joint Traffic Association < 899 F. R., 1020 ( 171 U. S., SOS , 60F. R.,306 United States vs. E. C. Knight Company ] 60 F. R., 934 ( is6 U. S., I United States vs. Nelson ._ S2 F. R., 646 United States vs. Patterson et al { ^^ W t," o^ j S9 F. R. 280 ' S3F.R.,440 United States vs. Trans-Missouri Freight Association \ 58 F. R., s8 ( 166 U S., 290 United States vs. Workingmen's Amalgamated Council of ( 54 F. R., 994 New Orleans ( 57 F. R., 85 Waterhouse vs. Comer ss F. R., 149 Wiswall, The Charles E., »/ Scott \ HZ'^''^^^ < 86 F. R., 671 No. 307. Bill to Enjoin the Certification of Value of Telephone Com- pany for Taxation (i). [Caption.] To the Honorable, the Judges of the Circuit Court of the United States in and for the Middle District of Ten- nessee : The East Tennessee Telephone Company, a corporation chartered and existing under and by virtue of the laws of the state of Kentucky and having its chief oflfice or place of busi- 388 SUITS IN EQUITY. ness in Warren county, in said state, brings this, its bill of complaint, against Robert L. Taylor, Governor of Tennessee;, E. B. Craig, Treasurer of Tennessee, alnd William S. Mor- • gan, Secretary of State of Tennessee, all citizens of Ten- nessee. Plaintiff respectfully represents and snows that it is a cor- poration of the state of Kentucky, engaged in the telephone business, with power to engage in the telegraph business. It has lines and exchanges in Tennessee and Kentucky, but its Tennessee plant is not physically connected with its Ken- tucky plant. It has filed its charter, or a certified copy there- of, with the secretary of state of Tennessee, and abstracts thereof have been duly recorded in the registers' offices of the counties of Tennessee in which it does business, and it has authority to do business in Tennessee. It does business and has exchanges and toll stations and lines in counties in Tennessee and in municipal corporations in almost every one of the same. It pays a privilege tax for doing business in Tennessee, to the state, amounting to $1,157.25. It has 2,135 miles of wire in Tennessee. It has been assessed at $95 per mile on its lines, or $2,031.10 in all. Less than one-half of the property is in Tennessee. It has no outstanding bonds and its stock has no market value; the company has not paid a dividend since 1894; its exchanges will average about fifty wires to the pole mile and have cost less than $20 per wire mile to erect and can be reconstructed at the same price. Its entire plant, poles, wires, etc., can be reconstructed anew in Tennessee for less than seventy-five thousand dollars, and the said property, to wit, its poles, wires, batteries, etc., in Ten- nessee are worth less than $55,000.00. The net earnings of the company in Tennessee in 1896 were only four thousand dollars ; the net earnings for the first half of 1897 were $2,043.88. Its earnings in Kentucky for the last fiscal year were $16,097.97. It has long-distance con- nection in that state with large cities like Cincinnati and BILLS IN SPECIAL CASES. 389 Louisville and is free from force and competition. It has competition of that character in Tennessee at two of its princi- pal cities. Its rates are thirty dollars and thirty-six dollars for ground circuits at Lexington, Kentucky, its largest Ken- tucky exchange, and only eighteen and twenty-four at Knox- ville, Tennessee, where said competition exists. Its property was valued for taxation and assessed last year in Tennessee for $45,240, and never has been assessed at a higher rate. Telephone property is of a precarious rate, owing to the dele- terious and destructive effect of the sulphur in coal smoke, telephone wires have to be renewed on an average every five years. Moreover, they are subject to great injury from storms and sleet. The stations, lines and exchanges of plaintiff are all situated in East Tennessee. The valuation of its property in Kentucky for taxation is about the same as that which has heretofore prevailed in Tennessee and the property is substan- tially of the same description and value. Plaintiff now further shows that its said property in Ten- nessee, taxed as aforesaid, is all of the value of less than fifty- five thousand dollars. The capital stock of the company is three hundred thousand dollars, and is not worth its par value. There has been no market or sale of the same for years and if sold upon the market it could not be sold for fifty cents on the dollar. Plaintiff now further shows and says that, in pursuance of Section 4, Chapter 5, of the Acts of Tennessee of 1897, pro- viding for the assessment and collection of revenue for state, county and municipal purposes, whereby revenue is collected from the assessments of railroad, telephone and telegraph property in Tennessee, Hons. E. L. Bullock, F.. M. Thompson and N. H. White were appointed commissioners by the gov- ernor of Tennessee to act as assessors under the said Act, and it shows that the said commissioners, acting as assessors thereunder, received from the comptroller the schedule re- quired to be filed with him by the said Act and proceeded to 390 SUITS IN EQUITY. ascertain the value of said property for taxation. Raintifif filed with it the schedules required by law. Said commission- ers had before them as evidence of value the said schedules and also the deposition taken by plaintiff of J. W. Hunter, its secretary, and also the affidavits of evidence hereinafter men- tioned. Plaintiff further shows that Section 5 of said Act pro- vides that the assessors in arriving at the valuation of the property to be assessed, shall have in view and look to, the capital stock, corporate property, franchises and gross receipts and the market value of the shares of stock and bonded debt. It is provided in Section 7 of said Act, that the franchises and choses in action and personal property of*the company, hav- ing no actual situs, shall be known as distributable property and shall be valued separately from the other property, and after ascertaining the total value of such distributable prop- erty, wherever situated, and after having deducted from this value one thousand dollars, said assessors shall divide the remainder by the number of miles of the entire length of the telephone lines, 'and the result shall be the value per mile of such distributable property for the purposes of taxation, and the value per mile of such distributable property shall be mul- tiplied by the number of miles in the state and the product thereof shall be the sum to be assessed against such property for state purposes ; and the value so ascertained shall be mul- tiplied by the number of miles in each county or incorporated city or town, and the product shall, be amount to, be assessed against such, property by such counties, incorporated towns and cities, respectively. Section 8 provides that for the assessment of that class of realty which does not form a part of the lines of the telephone proper. This bill of complaint, however, only has reference to the assessment of distributable property. Upon all of said evidence the said assessors proceeded to assess, and did assess, the distributable property situated in BILLS IN SPECIAL CASES. 391 the state of Tennessee at three hundred dollars per mile or at about two hundred dollars per mile more than it had ever been assessed . for in Tennessee, and about two hundred and fifty dollars per mile more than the other states it traverses assessed it for. They assessed it for this valuation for the years 1897 and 1898, both. Plaintifif shows that all said properties were and are already lawfully assessed for the year 1897, and that the said assessments are yet in force and have never in any way been annulled and superseded and that they are judgments and enforceable as such by the state of Tennessee and the several counties, cities and towns, through which the said company's lines run in the state of Tennessee and that there is no author- ity in law for making another assessment of said property for 1897. The said assessment for 1897 was certified down to the counties and towns by the comptroller of the state as early as October, 1896. They were completed final assess- ments before the Act of 1897 was passed. The said Act of 1897 did not directly, nor by implication, repeal or set aside said assessments or have any retrospective effect upon them, neither does it contemplate or direct a reassessment for 1897 to be made, In pursuance of Section 11 of said assessment Act, plaintiff appeared before said commission and filed exceptions to said assessments and the depositions of divers witnesses. They also filed in their behalf before said assessors a large number of affidavits, about 155 in all, made by tax assessors, trustees and other officials and real estate owners, which showed that within the counties through which plaintiff's lines ran and in the counties in Tennessee through which plaintiff's said tele- phone properties assessed by said assessors, ran, and in the counties in Tennessee through which other telephone proper- ties assessed by said assessors, ran, real estate generally and systematically was assessed for taxation at from fifty to seven- ty per cent, of its value. These affidavits varied in form, but 392 SUITS IN EQUITY. the general tenor and result of them and the depositions taken, is to establish, and your plaintiff alleges it to be a fact, that property generally in Tennessee, other than telephone prop- erty, by assessments generally and purposely made, does not bear the burden of taxation at a greater proportion than an average of sixty per cent, of its market value. Plaintiff further shows that it also filed the affidavits of Jos. H. Thompson, Wm. A. Goodwin, Samuel J. Keith and Edgar Jones, which establish that the quoted market value of stocks and bonds resting upon railroads, telephone and other property, represented by stocks and bonds, are not even ap- proximately conclusive of the actual value of property cov- ered by them, that the stock quotations of particular days, as they appear in the New York Financial Chronicle and simi- lar papers are no actual criterion of the market value of stocks and bonds on those days ; that it is not a correct or safe basis to take the earnings, either gross or net, of such property as a railroad or a telephone company, as approximately conclu- sive of the actual value of the property covered by them ; that even if net earnings should be taken into consideration, it should not be assessed upon any such basis as the legal rate of interest in Tennessee, but should be, in order to give a proper allowance for the hazard of the investment, estimated on a basis of at least twelve per cent. Plaintiff avers that these statements are facts and that they are all material and far-reaching in the matter of making these assessments and were attested by men of very large financial experience. A copy of said affidavits is attached hereto marked exhibit " B " as part hereof. The said assessors admitted as competent evidence all of the affidavits of the class first referred to, but erroneously ex- cluded as evidence the depositions of Thompson, Goodwin, Keith and Jones, and solely upon the ground that affiants were residents of Nashville, and for this reason should have been produced in person as witnesses before the commission. They BILLS IN SPECIAL CASES. 393 overruled all of petitioner's exceptions and let the assessments as made by them stand. They filed with the comptroller, as provided for in Section II, their said assessment, together with the record made up by them. Orator further shows that by Section 12 of said Act, the governor, treasurer and secretary of state, are made a board of equalization. It is made their duty as board of equaliza- tion to proceed to examine the assessments made by the as- sessors, and they are authorized and directed to increase or diminish the valuation placed upon any property and to require of said assessors any additional evidence touching any one or more of the same. The assessments are not to be deemed com- plete until corrected by the said board of equalization. Orator shows that under the former tax laws of the state of Tennessee for assessing such property as that of your ora- tor, the governor, treasurer and secretary of state constituted a board of commissioners; it was not a board of equalization. Orator avers that under the Act of 1897 the said three officers are made a board of equalization and that, being officers sworn to uphold the constitution of the state, which requires that all taxes shall be equal and uniform and that no one spe- cies of property shall be taxed higher than other species of property of the same value, and being at the same time en- trusted with the duty of assessing and equalizing taxes, they were not only authorized, but it was obligatory upon them to assess petitioner's property so that it would not bear more than its equal and just burden under the constitution as. compared with other property in this state. The comptroller delivered to the said equalizers the assess- ments and records made up by the said assessors and said equalizers, after considering said assessments, did, on the 1 6th day of November, 1897, conclude and determine as fol- lows: First. They excluded Poor's Manual as evidence. 394 SUITS IN EQUITY. Second. They excluded the affidavits of Thompson, Good- win, Keith and Jones as evidence. Third. They overruled plaintiff's exceptions to the deposi- tions of Shepherd and Frazer and the Financial Chronicle ex- hibited with them and looked to the same as evidence. Fourth. They overruled the exceptions to the assessment for 1897 and they affirmed the action of the assessors in over- ruling plaintiff's exceptions in assessing all of said property for the years 1897 and 1898 at the valuation stated above. Fifth. They, after finding the valuation of said property, refused to make any deductions from the actual valuation as ascertaifted by them, on account of the assessment of their property in the state of Tennessee for less than its value and refused to equalize the property of plaintiff for taxation with other property in the state of Tennessee. Every of which actions was illegal and unauthorized. In all other respects they affirmed the acts of the assessors. Plaintiff avers that all of said-assessments besides being im- properly made and not according to law, are excessive, op- pressive and illegal and that there is no competent evidence in the record on which to sustain them. The present assess- ments and of former years and the assessments of the same line in other states into which it extends have been heretofore shown. Defendant, William S. Morgan, was secretary of state of Tennessee during the years 1895 and 1896, and E. B. Craig was treasurer at the same time. As ex-ofUcio examiners for the year 1896, they assessed said telephone property at forty dollars per mile; there was no general rise of value of tele- phone property or any other property in the state of Ten- nessee between the times said assessments were so made by them and January 10, 1897. On the contrary, all property, including telephone property, was most severely depressed dur- ing 1896. There has been no increase in the taxable value BILLS IN SPECIAL CASES. 395 of other property in the state of Tennessee for 1897, as com- pared with the said preceding years. In pursuance of said assessment Act, said board of equal- izers will, as they have informed your plaintiff's couhsel> unless prevented, at twelve o'clock, noon, November 20, 1897, certify to the comptroller the valuations so placed by them upon said property. The comptroller will proceed, after said assessments have been certified to him, according to the course of law, to collect for the state taxes so wrongfully assessed and will certify to the several towns, and cities and counties of the state through which said telephone lines pass, the said assessments and the said towns, cities and counties will pro- ceed under said Act to collect the same. Under said Act taxes so assessed in behalf of the state, counties, town and cities will become a first lien upon the property from the loth of January, 189 — , of the year of which they are assessed.. If the said taxes are not paid as assessed, distress warrants will issue against your plaintiff, and if it shall not pay the same, then the comptroller will, under said Act, advertise said property and sell the same for cash free from the equity of redemption and execute to the purchaser any deed or deeds. , Plaintiff charges and says that the action of the said board of assessors and the said board of equalizers was arbitrary, opT pressive and in violation of the law, and will fix upon plaintiff a charge for which there is no proof before them to warrant and impose upon plaintiff a burden unjust and unequal as between its and other property throughout the state ; that said board acted in violation of the letter and spirit of the constitu- tion and not upon the proper authority, and erred as well in excluding competent evidence offered by petitioner, as in look- ing to and considering incompetent evidence adduced by the assessors. Plaintiff further shows that Chapter 5 of the Acts of 1897, under which the assessors and commissioners aforesaid have 396 SUITS IN EQUITY. assumed to proceed, is unconstitutional and void in that it contains two subjects in its caption and its body, to wit : ( i) Provides for the assessment and collection of revenue for state and county purposes. (2) And provides for the assessment and collection of revenue for municipal purposes. And for this reason, said assessments are null and void. Recognizing the fact that throughout the state of Tenncbsee property has been systematically assessed for a time immemo- rial at a valuation for the purpose of taxation greatly less than its actual value and at a valuation ranging from fifty to about sixty-five per cent, thereof, the state of Tennessee, through its board of assessors and equalizers during the years of 1895 ^^^ 1896, endeavored to systematize the county assess- ments and bring them up to a common basis or standard of valuation. Accordingly, said board established as the basis for assessment for taxation, in all the counties of the state, seventy-five per cent, of the actual or true value of the lands or property to be assessed and raised the assessment in the various counties of the state for both said years, where they were less than seventy-five per cent, to seventy-five per cent. Plaintiff further shows that the said board of assessors and equalizers was the first state board of equalizers in the state of Tennessee and its establishment was a legislative recognition of the systematic usage and custom of valuation prevailing and of the legislative purpose to render it uniform throughout the state. Plaintiff further says that the said state board of assessors and equalizers was not only trusted with the power of equal- izing assessments throughout the state, but also with the duty of assessing railroad, telegraph and telephone properties for taxation, and it avers and charges that the assessment, made by said board and valuations fixed upon said property were made by them at the rates fixed for the purpose of equalizing the assessments of such property with those of the lands in Tennessee. BILLS IN SPECIAL CASES. 397 Plaintiff is informed and believes and thereupon charges and says that the system of taxation, which has prevailed in Tennessee, viz. : of assessing property at less than its value, has also prevailed throughout the states of the Union and has been adopted and acted upon upon grounds of public policy, the idea being the government could be more economically ad- ministered and the public revenues better, husbanded from extravagant appropriations by so adjusting the rate of taxa- tion to the valuation of the property to be taxed as to require all demands for increase of public revenues to be met through a raising of the rate of taxation instead of the assessment. In this way the question of taxation can be and has been kept in a position to receive public consideration. The value fixed by the said board is greatly in excess of the value shown in the proof in the record before said board. The system by which they proceeded to ascertain and the said value is erroneous, as hereinbefore shown. The said taxation is unequal, unconstitutional and void. The aforesaid persons, to wit, R. L. Bullock, N. H. White and F. M. Thompson, who have assumed to make said assess- ment and assessments, were never appointed or qualified as tax assessors of railroads or other property for the state of Tennessee for the years 1897 and 1898 under and by virtue of the published Acts of Tennessee of 1897, Chapter V. They have assumed to exercise the authority of tax assessors and have made said* assessments only as ex-oMcio commissioners by virtue of being commissioned railroad commissioners of the state of Tennessee, under and by virtue of authority under Chapter X. of the published Acts of Tennessee of 1897. The said Act is unconstitutional and void and said commissioners were illegally appointed and have no power to make said as- sessments or perform any acts under and by virtue of the said Act. Said Act is in contravention of the Constitution of the United States and of the state of Tennessee, and is void for the following reasons : 398 SUITS IN EQUITY. First. There are entirely different and distinct subjects em- braced in the title and the body of the Act, namely; (a) the creation of a railroad commission and the defining of its powers and duties, with provisions to secure the due enforce- ment of the lawful orders, rules and regulations; (&) the pro- hibition of extortion, unjust discrimination and undue and unreasonable preferences by persons and companies operating railroads in their charges for transportation of freight and passengers, and making such acts, when committed by a rail- road corporation, a misdemeanor, and imposing penalties for the same; (c) it provides adequate civil remedies to redress such extortions, unjust discriminations and undue and unrea- sonable preferences. Second. Said Act provides that any railroad corporation that shall be guilty of extortion or unjust discriminations, or of giving any person, or locality, or of any discriminations in traffic, or any undue or unreasonable preferences or advan- tages, shall, upon conviction, be fined not less than five hundred dollars nor more than two thousand dollars. These penalties are confined to railroad corporations, and do not include per- sons or individuals or partnerships engaged in the same busi- ness, and the law is therefore partial, unequal and class legis- lation. Third. The said Act provides that every witness who shall appear before the commission by its order shall receive his at- tendance and compensation as provided by law out of the state treasury, but provides that no witness summoned at the instance of a railroad, who is directly or indirectly interested in any stock, bond, mortgage, security or earnings of any such road, or who shall be the agent or employe of such road, shall be entitled to any witness fees or mileage for attendance. This classification is purely arbitrary. It is class legislation and unlawful discrimination, and not in accordance with the laws of the land. BILLS IN SPECIAL CASES. 399 Fourth. The title of the Act purports to make the provisions of the Act applicable to all railroad companies and other per- sons operating railroads in the state of Tennessee. Yet, while Section 15 applies to every common carrier (as defined in Section 14), the operation of Section 16 is confined to "rail- road corporations " alone. Again, Section 16 defines extortion as applied to a railroad corporation, but leaves it undefined as to all other " common carriers," namely, as to all other persons operating railroads in this state, thus making an unlawful discrimination and sub- jecting railroad corporations to penalties contrary to the con- stitution of the state of Tennessee and inconsistent with the law of the land. Fifth. Section 17 makes it unlawful for any corporation, whether railroad corporation or not, to give an undue or un- reasonable preference, but it does not apply to " persons operat- ing railroads in this state," which may be individuals or part- nerships, and not corporations. This section thus discrimin- ates unlawfully against corporations. This is class legislation and unconstitutional. Sixth. Again, Section 16 applies not only to persons and any other " common carrier," but Section 19 imposes upon railroad corporations alone a fine of not less than $500, and not more than $2,000 for "extortion," or for "unjust dis- crimination," or for " giving any person or locality or any description of traffic an undue or unreasonable preference or advantage." This is unlawful discrimination, class legislation and unconstitutional. The title of the Act embraces both individuals and corpora- tions, but the penalties apply only to corporations. Seventh. Again, under said Act, indictments or present- ments under this Act shall be preferred only upon recom- mendation or request of the railroad commission filed in the court having jurisdiction. This delegates to the commission the power to suspend the 400 SUITS IN EQUITY. criminal law, and practically takes out of the hands of the grand juries and criminal courts of the state the power to in- vestigate certain crimes and misdemeanors. Being an unlaw- ful delegation of legislative authority, it is unconstitutional and void and makes said Act unconstitutional and void. Eighth. Again, Section i8 prohibits the charging of any greater compensation for the transportation of passengers or property for a shorter than for a longer distance over the same line in the same direction, making it a misdemeanor and fixing the penalty at not less than $ioo and not more than $500. Section 33 provides that the commission, in its discretion, may suspend this law whenever they see proper to do so. This is a delegation of the legislative function, is not the law of the land, it is unconstitutional and the Act containing it is void. Ninth. Section 28 provides that every railroad company that shall fail or refuse, under such regulations as may be pre- scribed by the commission, to receive and transport without delay and discrimination the passengers, tonnage and cars, loaded or empty o^ any connecting line of railroad or other common carrier by water or land, and every railroad which shall, under such regulations as may be prescribed by the com- mission, fail or refuse to transport and deliver without dis- crimination any passengers, tonnage and cars, loaded or empty, destined to any points over the line of any connecting railroad, or shall • refuse to receive and transport without delay any freight consigned to any person, firm or corporation, or com- mon carrier at any point on its line, or at any point on any other connecting line of railroad, shall be guilty of unjust discrimination. This section permits the commission to make any sort of regulation, reasonable or unreasonable, with respect to the transportation of freight and passengers. The railroad is bound to accept and convey such freight under such regula- BILLS IN SPECIAL CASES. 4OI tions. If it fails to do so it is guilty of " unjust discrimina- tion," and the penalty, if the carrier so refusing, be a " railroad corporation," is a fine of not less than $500, and not more than $2,000. The railroads have no opportunity of actively contesting the reasonableness of regulations prescribed by the commis- sion, but irrespective of whether they be reasonable or unrea- sonable, a failure to convey freight or passengers in accord- ance therewith is, under Section 28, " unjust, discrimination," which subjects the party, if a " railroad corporation," to the said fine. This is not due process of law, is unconstitutional, is a con- fiscation of property and class legislation, and does not give the said corporations equal protection of the laws, but sub- jects them to undue, unusual, harsh and illegal and discrim- inating burdens. Tenth. The provisions of said Act are so vague and in- definite as to render it unconstitutional and void. Section 10 defines extortion to be the collection of more than a just and reasonable rate of toll or compensation for the transportation of passengers or freight in this state and for the use of any railroad car upon its track, or upon any track it controls or has the right tO' use in this state. There is no definition by which a just and reasonable rate of toll or compensation may be de- termined ; even if the commission fixes a regular schedule and the railroads shall comply therewith it may yet be subjected to indictment and be found by a jury to be guilty of extortion. There is no rule laid down by the said Act, or any other law of the state of Tennessee by which a jury shall be guided and the railroad company cannot know whether or not it is violating the law, and there is no standard by which it can know whether or not it is committing an offense. No citizen or property or business can be criminally subjected to such vague and in- definite rules and regulations and no statute subjecting a per- 402 SUITS IN EQUITY. son or corporation to prosecution and punishment by such vague and indefinite terms is valid. Eleventh. The undue and unreasonable preference forbid- den by Section 17 is so vague and indefinite that no railroad can know when it has violated the law until the jury in the particular instance, whether in a civil or criminal action, has passed upon the question. Upon the same state of facts one jury in the same place may, under the same law, find the rail- road corporation guilty and another jury, upon the same set of facts, in the same place, and under the same law, find the defendant innocent. It leaves everything to the caprice of the jury. Twelfth. Section 28 of the Act gives to the railroad com- missioners power to give special rates to encourage infant manufacturing industries, or any other business or industry, or for the transportation of any perishable goods. This puts it in the power of the commission the right to discriminate be- tween persons and places and classes of business. It is class legislation and the delegation of legislative power and it con- fers upon them the authority to suspend the criminal provisions of Section 19. Thirteenth. Section 27 of said Act, without any provisions being made therefor in the caption, and the same being an entirely different subject from the main features of the bill, changes the order of business in the courts, and gives precedence to those suits arising out of the regulations made by said Act and orders them to be advanced upon the docket, thus making the Act embrace two subjects different in char- acter. Fourteenth. Section 28 legislates in regard to the failure to transport, without delay, persons and empty or loaded cars, which subject is not provided for in the caption and is a differ- ent subject from that set out in the caption and which is the general purpose of the bill and for such reason said Act is unconstitutional and void. BILLS IN SPECIAL CASES. 4O3 Premises considered, plaintiff asks leave to bring this bill against Robert L. Taylor, E. B. Craig and Wm. S. Morgan, ex-ofUcio the board of equalization, the parties named in the caption as defendants hereto, and it prays for the writ of sub- poena to issue to them, commanding them to appear by a day certain before this honorable court and to answer the allega- tions hereof, but not under oath, which is waived. : It prays for the writ of injunction to issue, enjoining them from and restraining the defendants aforesaid and each of them from certifying the record of their action in the matter in the premises mentioned or the valuation fixed by them as aforesaid or the assessments to the comptroller of the state of Tennessee, until further orders herein, to the end that the jus- tice and validity of the said assessments may be determined. It prays that the said injunction may be made perpetual, and may it please your honors to grant to plaintiff such other and further relief as the nature of the circumstances of its case may require, as in duty bound it will ever pray. This is the first application for a writ of injunction in this case. X. & X., Solicitors and of Counsel. State of , County of . I, W. H., do make oath and say that I am secretary of the East Tennessee Telephone Company, the plaintiff above named, and am acquainted with its affairs, and that the rhatters and facts stated in the foregoing bill are true to the best of my knowledge, information and belief. Sworn to and subscribed before me, this the day of . A. R., [^SealJl Notary Public. Taken from the case of Taylor vs. The East Tennessee Telephone Com- pany in the Circuit Court for the Eastern District of Tennessee (not re- ported). 404 SUITS IN EQUITY. No. 308. Bill to Enjoin Building a Telephone Line in City (i). ICaption.] To' the Judges of the Circuit Court of the United States for the District of . The complainant, the A. B. Telephone Company, a corpora- tion duly created by and organized under the laws of the state of , and a citizen and resident of said state, brings this, its bill of complaint, against J. J., a citizen of the state of ; and thereupon the said complainant says : First. That this suit is between citizens of different states, viz., the A. B. Telephone Company, a citizen of the state of , and J. J., a citizen of the state of , and that the amount in controversy herein exceeds the sum or value of $2,000, exclusive of interest and costs. The complainant says that the rights owned by it as hereinafter set out are of the value of more than $2,500, and that the same will be damaged and injured to an amount exceeding $2,500 if the defendant is allowed to exercise the franchises granted to him in the hereinafter mentioned. Second. That heretofore, to wit, on , the city of , being then a municipal corporation of the state of , and a city of the fourth class, being duly authorized thereto under the statutes of the state of organizing cities of that class, did, through its board of council, pass an ordinance by which it directed that on , at two o'clock p. m., before the court house door in , there should be sold at public auction to any company, corporation or individual the franchise set out in the said ordinance; the sale to be for cash to the highest bidder. The said ordinance was duly published according to law, and the sale made as therein directed ; and thereupon the com- plainant purchased the said ordinance and its bid for the same was accepted on , by the said board of council. BILLS IN SPECIAL CASES. 4^5 Third. It was declared by the said ordinance that the said franchise was for the purpose of erecting and operating a ^system of telephone service and telephone exchange for the period of ten years from the passage and publication of said ordinance, and that the franchise included the exclusive right to the use of the streets and alleys of the city of , for the erecting and maintaining of all poles and wires for said pur- pose, either above or under ground, and that by the telephone service and telephone exchange was meant any and all methods of transmitting written words by means of wire, electrically or otherwise; whether by telephone, stetophone, telautograph or other apparatus, but does not include messages by the ordinary system of telegraph. It was further provided that the said franchise was to be granted upon certain conditions, viz., that all poles should be erected under the supervision of the street committee of the board ; that these poles should be erected and maintained in a vertical position; that the services furnished should be good and sufificient ; the telephone service should be furnished to any one desiring it to any one living within the city limits under the regular rates of the grantee or purchaser; and that work should be begun in good faith upon the establishment of said telephone system within sixty days from the date of the ordi- nance and prosecuted to completion within twelve months, un- less prevented by act of God or unavoidable casualty; that for said franchise there was granted to the city of , one . free telephone and one fire gong to the fire department of the city of , and that there should be the right, free of charge, to fasten wires and other apparatus necessary for a fire alarm system, to the poles and cross-arms of the grantee or purchaser or assigns of the said franchise for the full period of the life of the said franchise. And it was further provided that the grantee or purchaser or assigns were to keep all the poles and cross-arms in repair for fire alarm wires. 406 SUITS IN EQUITY. The said ordinance fixed a maximum price to be charged of a month for private residences and in all other places. A copy of said ordinance is attached to the bill of com- plaint and asked to be read as part hereof; also an amended ordinance passed March . Fourth. The complainant having become the purchaser of said franchise as aforesaid,, complied with all of the terms and conditions thereof, and among other things, began work upon the establishment of the said telephone system within sixty days from the date of said ordinance, and completed the same within twelve months, and has ever since been and is now in the enjoyment of said franchise, and has ever since been and is now granting to the city and citizens of -^ — , the services stipulated for in said ordinance. Fifth. By the constitution of the state of Kentucky, adopted and promulgated in the year 1891, it is expressly provided, among other things, that no city will be authorized or permit- ted to grant any franchise or privilege or make any contract in reference thereto for a term exceeding twenty years, and before granting such franchise or privilege for a term of years, such city shall first, after due advertisement, receive bids there- for publicly and award the same to the highest and best bidder. Very recently and within the last two- weeks the said board of council of the city of has passed an ordinance by which it is provided that the defendant, J. J., and his associates should be and were thereby given permission to erect, main- tain and operate in the city of , a telephone system and exchange ; to erect on the streets and alleys of said city, under the supervision of the street committee, such poles as may be proper and necessary to conduct such system, and the said street committee is " hereby authorized and directed to permit the erection of said telephone poles at such places as may be necessary for the proper maintenance and operation of such telephone system." BILLS IN SPECIAL CASES. 4^7 A copy of said ordinance is annexed hereto and is asked to be taken as a part of this bill of complaint. Sixth. The granting of said ordinance is in violation of the contract contained in the ordinance under which complain- ant purchased its franchise and impairs the obligation of the said contract, and is contrary to the construction of the United States, and particularly to that article which forbids any state to pass any law impairing the obligation of a contract. Seventh. Said ordinance granting the said privilege to the said J. J., as aforesaid, deprives the complainant of its prop- erty without due process of law and deprives it of the equal protection of the law, in that the said J. J., by erecting his telephone poles and wires in the streets of and operating under the said franchise will greatly impair the value of the complainant's franchise purchased by it as aforesaid, and the said J. J. will, by the erection of its poles and wires, greatly interfere with the operation of the complainant's telephones and telephone system. Eighth. That the said ordinance granting the said right to the said J. J. is void under the constitution of the state of Kentucky, especially the clause above quoted, in that it at- tempts to make a grant gratuitously to the said J. J., and with- out due advertisement, receivirig bids therefor, and awarding the same to the highest and best bidder. Ninth. The complainant brings this suit not only in its own behalf but in behalf of all others similarly situated, and alleges that it is the owner of property in the city of , upon which it annually pays the rate of taxes prescribed by the board of council of said city; that privileges and franchises which are required by the constitution to be sold can not be bestowed by the council gratuitously and when thus bestowed the board of council is donating property which belongs to the public and which, if lawfully sold, would bring money into the treasury, and in that way lessen the taxes to be paid 408 SUITS IN EQUITY. by individuals and corporations owning property within the limits of the said city. Tenth. That the said J. J. will, unless enjoined and re- strained by this court, proceed either by himself or in asso- ciation with others to complainant unknown, to whom he may endeavor to assign the franchise granted by said ordi- nance, to erect poles in the streets of and string wires thereon ; establish a telephone system within the said city and endeavor to induce the persons therein who are now or may be- come patrons of the complainant, to become his patrons, and will in this and in divers other ways, interfere with the fran- chise of the complainant and with its profitable use of the same ; and the said J. J. will further, unless restrained by this court, erect poles and wires in said streets in such manner as tO' interfere with the poles and wires of the complainant, and will obstruct and render difficult the conduct of complainant's business; that unless restrained by this honorable court the said J. J. will usurp to himself the franchise of using the streets and highways of the city of for the purpose of erecting poles and stringing wires and conducting over said wires the business of a telephone company, and in that way will take to himself profit from that which belongs to the public in gen- eral ; and that the said Downey will, unless restrained by this honorable court, proceed, under cover of said illegal and void ordinance as aforesaid, in divers ways to interfere with and interrupt and endanger the business of the complainant and the due and full and fair exercise of the franchise vested in it and which it has purchased, as heretofore stated, and for which it made, under the ordinance as aforesaid, a lawful and valid contract with the said city of — ; — . By all of which complainant will be damaged in a manner that is irreparable and in amount that can not be compensated by a suit at law. Wherefore the complainant prays that the said ordinance attempting to grant the said rights as aforesaid to the said J. J. be declared utterly null and void and of no effect; and bIlls in special cases. 409 that the said J. J. be perpetually enjoined and restrained from assigning said franchise to any person or corporation and from erecting poles in the streets of the city of , or stringing wires thereon, or erecting a telephone exchange therein, or from endeavoring to conduct the telephone business by the use of the streets or highways of the said city of , and from in any way interfering with the enjoyment by complainant of its rights as aforesaid and that a temporary injunction be issued herein to the same efifect as above prayed as to the final in- junction, and that the complainant may have all other, further and proper relief. May it please your honors to grant unto your complainant the writ of subpoena to be issued from the clerk's office of this court, directed to the said J. J., and commanding him to ap- pear herein upon a day to be named therein and full and true answer make to the complainant's bill, but not under oath — answer under oath being waived; and your complainant will forever pray. The A. B. Telephone Co., By E. H. X. X., Attorneys. E. H. says he is one of the attorneys for the complainant, that it has no officer in this county and that the facts in the above bill of complaint are true. Sworn to and subscribed before me this day of . J. N., Notary Public. (ij Taken from Downey vs. East Tennessee Tel. Co., in the Circuit Court of the United States for the Eastern District of Tennessee (not reported) . 410 SUITS IN EQUITY. • No. 309. Bill by a Telephone Company to Enjoin a Competitor from Connecting with Its Devices (i). To the Honorable Judges, of the Circuit Court of the United States for the Division of the District of . Your complainant, the A. B. Telephone Company, respect- fully shows to the honorable court that ; it is a corporation or- ganized under the laws of the state of and a citizen of said state ; that it has complied with the statutes of this state ; that it has been for many years engaged in transmitting intel- ligence by metallic wires, operating and maintaining exchanges and toll lines in the states of and , and for the past years has been operating an exchange in the city of , and attempting to give to its patrons and subscribers of and the surrounding country a service second to none, known to the telephone business and its business has grown from a very small exchange to one of the largest in the country in cities the size of , and its patrons and subscribers now number eleven hundred, and that it has expended large amounts of money for the purpose of equipping this exchange with the most modern improved instruments and devices that it was able to procure in the markets of the country, and it is. neces- sary, from time to time, to buy modern equipments and devices that is constantly being invented, requiring a great expenditure of money to maintain the high standard of service that it is now and has been furnishing to the people of . Your complainant further shows to the honorable court; that some four and a half years ago that the defendant, C. D., conceived the idea of entering the telephone business in the city of , and organized the defendant, the C. D. Telephone company and duly incorporated the same under the laws of the state of , and a citizen of said state residing in the district of , built and equipped what is known as the inde- pendent telephone system of , and equipped the same with BILLS IN SPECIAL CASES. 4^1 instruments or phones, that was in the opinion of your com- plainant very much inferior to the instruments and phones used by your complainant, and the defendant company has been an active competitor to your complainant in the telephone business in the city of , and secured a strong foothold at first, upon the ground that it was a local corporation and that your complainant was a foreign corporation, and has done many things to harass and annoy your complainant. But your com- plainant was satisfied and its judgment has largely been veri- fied, in that that the people would seek the telephone company and patronize the business of the one that gave to its sub- scribers the most efficient service, and it has beeen along these . lines that your complainant has been able, for the past two years to almost double the patrons and subscribers of the de- fendant company. Your complainant would further show to the honorable court, that some time ago that the defendant, C. D., through his employes and agents, over the protest and written re- quest of your complainant, attempted to impair and greatly de- stroy the superior and efficient service of your complainant, and at the same time, derive revenue from this impairment for the defendant company, and without compensating your com- plainant for the use of its property by giving a double connec- tion to the subscriber who had the phones of both the defend- ant and complainant companies, directly connecting your com- plainant's property with the property of the defendant com- pany, by means of a switch that connects with a desk phone, by a wire running from the phone of the complainant com- pany and one running from the phone or wires of the defend- ant company, and the complainant believes and charges that the instrument used, by means of this connection, with the wires and phones of your complainant, is defective and infer- ior. A diagram of this connection is filed with this bill and marked Exhibit " A." 412 SUITS IN EQUITY. Your complainant further shows to the honorable court, that the defendant company has been charging your complain- ant's subscribers extra compensation for the use and connec- tion here described with the property of the complainant com- pany, and this revenue is received by the defendants, greatly to the impairment and expense of your complainant, because that in the use of the instruments furnished, being inferior and de- fective, the defendant is unable, often to give the proper con- nection, and it is impossible for your complainant to give to its patrons and subscribers a good and efficient service, and especially is this true in the long distant connection, and if this is permitted, it will soon cause the service of your complainant to be dragged down to the same low standard as that now fur- nished by the defendant company to its patrons, and greatly damage the reputation and good standing of your complain- ant's efficient and good service. Your complainant further shows to the honorable court, that notwithstanding two written appeals, to C. D., as mana- ger, to desist and immediately stop giving or making these double connections, the defendant has persisted in contracting with your complainant's subscribers, but as to the exact, num- ber, your complainant is not advised, but believes and charges that the defendant has contracted with from ten to fifteen of. your complainant's patrons ,and is now engaged in soliciting and contracting with many others for this same double con- nection, and if not enjoined the defendant, will continue to con- tract with your complainant's subscribers, and in this way use your complainant's property, greatly to its damage, without any compensation to your complainant, and a revenue to the defendant company. Therefore complainant prays: That injunction be ordered by the honorable court, to in- hibit and restrain the defendant, C. D., his agents or em- ployes, directly or indirectly, from further connecting his BILLS IN SPECIAL CASES. 413 property with your complainant's property by means of wires or otherwise, his phones or switches or any other device. Your complainant further prays, that the defendants be enjoined from continuing and maintaining the connections heretofore made, and that afe wrongfully being operated and maintained by the defendants, and that the defendants be re- quired at once to disconnect all wires and instruments now con- necting the wires or phones of the defendant company with the complainant company. Your complainant further prays, that it be awarded three thousand dollars damage for the wrongful connection hereto- fore made by the defendant. Complainant prays that subpoena issue as to these defend- ants, the said C. D. and the C. D. Telephone Company, re- quiring them to appear and answer this bill, but they are •excused from answering under oath. The A. B. Telephone Co. By R. X., its Solicitor. [^VerificaHon.] (i) Taken from Peoples' Telephone & Telegraph Co., vs. East Tetmes- see Telephone Co., 103 Fed. Rep. 212. No. 310. Bill to Enjoin the Transfer of Title to Patents under a Part- nership Agreement (i). To the Honorable Judges of the Circuit Court of the United States for the District of , Division : R. C, of the city of , and a citizen of the state of -, brings this his bill against B. E., of , and J. E., of , both citizens of the state of , and inhabitants of the Division of the District thereof, and thereupon your orator complains and says : First. That for many years prior to March i, 1897, he was a member of the partnership of J. W. & Son, manufacturers 414 SUITS IN EQUITY. of clay-working machinery at , that on or about said date, by transfer from the other members of said firm, he became the sole owner of the assets and property belonging thereto, in- cluding the demand herein sued upon, as well as all other rights, claims and demands of every nature whatsoever, both in law and in equity, belonging to said partnership. Second. That the defendant, B. E., for about three years prior to , was in the employ of said firm as a traveling salesman ; that in September of said year said firm, being then the owner of a shop right under letters patent of the United States, numbered , issued to D. B. on the day of , for an improvement in automatic brick cutting machin- ery, and being desirous of purchasing the entire interest in said patent, and reposing great confidence in the integrity and fidel- ity of said defendant, B. E., requested and directed him while so in its employ, to go to Dixon, Illinois, at its expense and as its agent to see said inventor, who was then the owner of said patent, and if possible obtain from him an option for the purchase thereof. Third. Your orator says that said defendant, while so act- ing as the agent and representative of said partnership, and in compliance with said instructions, did go to see said inventor, and did obtain from him a written option whereby he agreed to transfer said patent to said B. E. at any time before May, , on payment of the sum of $ , and to issue at any time prior to said date licenses to manufacture under said pat- ent, at one point only, on payment of the sum of $ fbr each license. Fourth. That some time in the month of November, while still in the employ of said partnership, said defendant notified your orator that he had obtained said option, and was then directed and instructed to accept the terms of said option and to cause said patent to be assigned to him as soon as possible, taking title thereto in his own name, and thereupon to transfer and assign said patent to said partnership ; that said defendant, BILLS IN SPECIAL CASES. 4^5 intending to defraud said partnership, and to deprive it of the benefit of the ownership of said patent, did not "formally ac- cept the terms of said option and procure a transfer of said letters patent as so directed, but left the employ of said part- nership on the first day of December, , without having accepted said option or caused said letters patent to be so assigned, all of which was done, as your orator alleges, with the intent and purpose of cheating and defrauding said part- nership out of the rights designed and intended to be secured to it by said option, and of appropriating said letters patent and the rights thereby conferred to his own use and advantage ; that shortly after leaving the employ of said partnership, and some time in December, , as your orator is informed and believes, and therefore alleges, with the like intent and pur- pose of cheating and defrauding said partnership, and doing its business a great and irreparable injury, said defendant without any authority from said firm sold a shop right under said patent to C. W. of , a competitor of your orator in said business, for the sum of $ ; that he concealed all knowledge of said sale from said partnership, and fraudulent- ly and unlawfully appropriated the money arising therefrom to his own use ; and your orator says that the interest so granted by said defendant in said patent was of the value of $ , for which amount your orator claims said defendant is justly in- debted to him. Fifth. That said defendant thereafter, and some time m March, , with the like intent and purpose, formally ac- cepted the terms of said option and fraudulently procured said patent to be transferred and assigned to himself, paying therefor the price fixed by the terms of said option, to wit, the sum of $ , which option and assignment said defendant caused to be recorded as and when given, respectively, in the Patent Office at Washington. Sixth. That at and prior to the time of accepting the terms of said option, the defendant, B. E., procured the said D. B. to 4l6 SUITS IN EQUITY. execute and deliver to him an assignment of a shop right, or a license to manufacture under said patent, leaving the name of the»grantee and the place at which said license was to be grant- ed blank; that said defendant has said assignment now in his possession or under his control, and threatens to, and unless restrained by this honorable court will, complete the execution of such assignment by filling in said blanks, and dispose of the same to some party ignorant of the rightful interests of your orator therein. Seventh. That said defendant has executea, but still has subject to his control, five additional assignments of shop rights under said patent, which he maliciously threatens to is- sue and deliver to competitors of your orator in the business of building clay-working machinery, for the sole purpose of de- stroying the value of such patent to your orator and of doing him a great and irreparable injury ; that your orator believes that said defendant will issue and deliver said assignments and transfers, and cause the same to be recorded in the Patent Office at Washington, unless enjoined from so doing by this honorable court. Your orator says that he has good reason to believe, and does believe, and for that reason alleges, that such executed assignments have been delivered by the said B. E. to the defendant, J. E., with instructions to deliver and cause the same to be recorded if any action is brought to recover the title to said patent. Eighth. That with the intent and design to further cheat and defraud your orator and said partnership, said defendant, B. E., fraudulently and without consideration, assigned and transferred to his brother, J. E., of , on or about , a license to manufacture at any places, and sdl throughout the United States, said invention under said patent, said J. E. then having full knowledge of the rights of said partnership and of your orator in said patent, and of the fraudulent man- ner in which said defendant, B. E., had acquired his interest therein. BILLS IN SPECIAL CASES. 41/ Ninth. Your orator further avers the fact to be that the said J. E., with such knowledge of the rights of your orator, is confederating and conspiring' with the said B. E. to assist him in so cheating and defrauding your orator of his lawful interest in said patent, and to that end is holding said assign- ments and transfers of rights therein for the sole purpose of making delivery of the same immediately upon the bringing of proceedings by your orator to enforce his rights thereto so that such proceedings may be rendered ineffectual. Tenth. That the said defendant, B. E., in direct disregard of his duty and obligations to your orator, has refused to assign said patent to him, although often requested so to do, to his great and irreparable damage and injury, for which injury he says he' has no adequate remedy at law. And your orator says that he can not safely give notice to said deffendants or either of theim, of his purpose to apply for an order of injunc- tion as herein prayed for, f(3r the reason that said defendants would immediately and before such order could be issued, de- liver said assignments and dispose of their interests in said patent, thereby defeating the objects and purposes of said in- junction. Wherefore, your orator prays the court now to grant him a writ of injunction restraining and enjoining the said defend- ants, and each of them, from in any manner disposing of said patent or any interest therein ; from selling, giving, delivering, assigning err transferring any license, shop rights or other in- terest therein to any person or company, and from delivering or causing to be delivered any executed assignments, transfers, li- censes or shop rights under said patent until the further order and decree of this court in the premises, and, upon final hear- ing, that said injunction may be made perpetual ; that the de- fendant, B. E., be decreed to hold the title to said patent as trustee for your orator and be compelled to disclose what sum he paid therefor, and what sums, if any, he has received from the sale of interests therein ; that an account may be taken of 41 8 SUITS IN EQUITY. the value of the interests in said patent so disposed of by said defendant and a decree rendered in favor of your orator there- for ; that upon final hearing hereof he may be decreed to assign said patent to your orator, and deliver to the clerk of this court for cancellation all assignments of any interests in said patent whether executed by himself or by the said D. B., which he now holds or over which he has any control ; that the de- fendant, J. E., be decreed to hold all title and interest trans- ferred to him in said patent, and all executed assignments of any interest in said patent, or rights thereunder, as trustee for your orator, and upon final hearing be ordered to assign any interests he may have in said patent to your orator, and to de- liver such executed assignments to the clerk of this court for cancellation, and for such other and further relief as the na- ture of the case may require' and to your honors may seem meet. May it please your honors to grant your orator a writ of subpoena to be directed to said B. E. and J. E., requiring them and each of them to personally appear before you to answer herein, but not under oath, the same being expressly waived, the several allegations in this bill contained, and fur- ther to perform and abide such other order, direction and de- cree herein as shall seem agreeable to equity and good con- science. R. C. IVerification.] (i) Taken from Penfield vs. La Dow, 40 C. C. A. 684; 100 Fed. Rep. I0Q2. No. 311. Bill to Enjoin Railroads from Refusing to Receive Freight from Connecting Lines. To the Judges of the Circuit Court of the United States for the Northern District of Ohio, Western Division. The Toledo, Ann Arbor & North Michigan Railway Com- BILLS IN SPECIAL CASES. 4^9 pany, a corporation of the state of Michigan, duly incorpor- ated and organized under the laws of the said state, and a citizen of said state, brings this, its bill, against the Pennsyl- vania Company, a corporation of the state of Pennsylvania, duly incorporated under the laws of said state, and a citizen of Pennsylvania, and the Wheeling & Lake Erie Railway Company, a corporation duly organized under the laws of the state of Ohio, and a citizen of the said state of Ohio, Albert G. Blair, Jacob S. Morris, the Lake Shore & Michigan Southern Railway Company, the Michigan Central Railroad Company, the Cincinnati, Hamilton & Dayton Railroad Company, the Columbus, Hocking Valley & Toledo Railway Company, the Toledo & Ohio Central Railway Company, the Cincinnati, Jackson & Mackinaw Railway Company. All of said six last named defendants being corporations created and organized under the laws of the state of Ohio, and citizens of said state of Ohio. Thereupon your orator complains and says that it is now the owner and operates a line of railroad extending from the city of Toledo, in the county of Lucas, and state of Ohio, northerly and northwesterly through the said state of Michi- gan to a terminus at or near the village of Frankfort, in Benzie county, said state of Michigan; that said line of railroad is about three hundred miles long. That your orator also owns and operates a line of steam ferry boats for the transportation ol cars and trains from said village of Frankfort, across Lake Michigan, to the town of Kewaunee, in the state of Wisconsin, and that it is a common carrier of freight and passengers under the statutes of the United States of America, and the states of Ohio and Michi- gan, aforesaid. Your orator further says that a large part of its business consists of the transportation of cars of freight from points in the state of Michigan and other states west of Michigan into the state of Ohio^ and also the transportation of cars and 420 SUITS IN EQUITY. freight consigned from the states of Minnesota, Wisconsin and Michigan to points in the state of Ohio and other states east thereof, and as such common carrier as aforesaid it is en- gaged in a large amount of interstate commerce and traffic, which is regulated and controlled by the provisions of the Acts of Congress in such case made and provided. Your orator further says that the said defendants, the Wheeling & Lake Erie Railway Company and the Pennsyl- vania Company, are likewise common carriers of freight and passengers, and as such the said defendant, the Wheeling & Lake Erie Railway Company, owns and operates a line of railroad extending from the city of Toledo aforesaid south- easterly through the state of Ohio to the city of Wheeling in the state of West Virginia, and controls and operates a line of railroad in Lucas county, Ohio, known as the Belt Railway, connecting your orator's road with the roads of the other de- fendant companies, all of whom own and operate lines of rail- road extending easterly and southerly from ^id city of Toledo respectively, and that the said defendant the Pennsylvania Company owns and operates a line of railroad extending from said city of Toledo southeasterly through said state of Ohio, to the city of Pittsburg in the state of Pennsylvania. All said defendant companies' lines of railroad connect with the line of your orator at a common grade in the county of Lucas and state of Ohio, convenient for the interchange of cars of freight. That a very large and important part of the business of your orator consists in the interchange of said cars of freight between your orator and said defendant companies. That substantially all the business transacted as aforesaid between your orator and said defendant companies consists of the interchange of cars containing freight consigned from points in one state to points in another state, and said business is therefore subject to all and singular the provisions of the BILLS IN SPECIAL CASES. 421 Act of Congress of February 4, 1887, regulating commerce between the states, and the amendments thereto. Your orator further says that all of said business of inter- change of cars of freight as aforesaid between your orator and said defendant companies is transacted within said county of Lucas and state of Ohio, within the jurisdiction of this court. Your orator further says that by the provisions of the Act of Congress aforesaid, it is the duty of said defendant compa- nies according to their respective powers to afford all reason- able, proper and equal facilities for the interchange of traffic with your orator, and to receive, forward and deliver cars of freight in the ordinary transaction of the business aforesaid from and to your orator without any discrimination. And your orator further says that it is the duty of said de- fendant companies under the statutes of the state of Ohio, to receive from your orator the cars of freight delivered to them in the ordinary transactions of the business aforesaid without any unnecessary delay, and to transport the same to their destination over their respective roads and in like manner to deliver to your orator all cars of freight billed over your ora- tor's road to be by your orator transported to their destination. And your orator further says that the said defendant com- panies and their officials, agents and employes have since the nth day of March, 1893, given out and threatened that they will refuse to receive from your orator cars offered or to be offered by your orator, and that they will not deliver to your orator cars billed over your orator's road for transportation by your orator to their destination, for the reason as your or- ator is informed and believes and charges the fact to be that because your orator has employed as locomotive engineers in its service men who are not members of the Brotherhood of Locomotive Engineers, which your orator is informed is an irresponsible voluntary association of locomotive engineers, the locomotive engineers in the employ of the defendant com- panies have refused to handle cars to be interchanged with 422 SUITS IN EQUITY. your orator's railroad. But your orator says that it is in- formed and believes that the defendants continue to afford to other railroads the full and free facilities for interchange of traffic as aforesaid, while refusing to 'transact such business with your orator thereby discriminating illegally against your orator. Your orator alleges the fact to be that no legal or reason- able ground exists why said defendant companies should re- fuse to transact the business of interchanging cars of freight as aforesaid, and that no excuse is alleged so far as your ora- tor is advised for such refusal, other than the one hereinbe- fore set forth. Your orator further says that if said defendant companies shall persist in their refusal to handle such interchange busi- ness as aforesaid, a very large and important part of your or- ator's business will come to a complete standstill. The trans- action of said interstate commerce will be paralyzed, and the loss and injury to your orator and to the public will be irre- parable and continuing. The defendant, Albert G. Blair, is the general manager of said defendant, the Wheeling & Lake Erie Railway Company, and as such has general charge and control of all its business operations and the defendant Jacob S. Morris is the superin- tendent of the defendant the Pennsylvaia Company, and as such has general charge and control of the business operations of said company in Lucas county, Ohio. Your orator further says that unless the said defendants are restrained by the order of this court from refusing to per- form their public duty as aforesaid, your orator will be unable to perform its public duty in the transportation of the cars be- tween the state of Ohio and the state of Michigan, that the interests of the public will suffer by reason of the accumula- tion of cars on the line of your orator's road and connecting roads and inability of your orator to carry or deliver them; that from the nature of the case the damages suffered by your BILLS IN SPECIAL CASES. 423 orator would be difficult and impossible to estimate, and that your orator has no adequate remedy at law in the premises. Your orator further says that the matter in dispute herein exceeds exclusive of interest and costs, the sum of $2,000 and that this suit arises under the constitution and laws of the United States. Inasmuch as your orator can have no adequate relief, except in this court, and to the end therefor, that said defend- ants may, if they can show why your orator should not have the relief hereby prayed for and make a full disclosure and discovery of all the matters aforesaid according to the best of their knowledge, information and belief, full, true, direct and perfect answers to the matters hereinbefore stated and charged, but not under oath, an answer under oath being hereby waived. Your orator prays that your honors may grant a writ of injunction issued out of and under the seal of this honorable court- perpetually enjoining and restraining the said defend- ant companies, their officers, agents, servants and employes from refusing to offer to your orator all reasonable and prop- er and equal facilities to the interchange of traffic with your orator, and from refusing to receive from your orator, for transportation over their respective lines of railroad any and all cars of freight, which may be tendered to them by your orator and from refusing to deliver to your orator all cars of freight which may be billed over your orator's line of railroad from said defendant companies in like manner as heretofore; and restraining said individual defendants and each of them while remaining in the service and employment of said re- spective companies from refusing to perform the usual serv- ices required in their respective capacities for the interchange of cars and freight between your orator and said defendant in the same manner in which the same has been heretofore carried on, and for such other relief as to the court shall seem equitable and proper in the premises. 424 SUITS IN EQUITY. Your orator prays that a provisional or preliminary re- straining order be issued to the same purport and effect as herein prayed for against said respective defendants to remain in full force until the further order of the court herein or until this suit shall be finally disposed of. May it please your honors to grant unto your orator, not only a writ of injunction conformable to the prayer of this bill but also a writ of subpoena issuing out of and under the seal of this court directed to said the Pennsylvania Company, the Wheeling & Lake Erie Railway Company, Albert G. Blair and Jacob S. Morris, the Lake Shore & Michigan Southern Railway Company, the Michigaa Central Railroad Company, the Cincinnati, Hamilton & Dayton Railroad Company, the Toledo & Ohio Central Railway Company, the Columbus, Hocking Valley & Toledo Railway Company, the Cincinnati, Jackson & Mackinaw Railway Company, commanding them on a day certain to appear and answer unto this bill of com- plaint and to abide by and perform such order and decree in the premises as to the court shall seem proper and required by the principles of equity. R. X., Solicitor for Complainant. [Verification.] (i) This bill was filed in Toledo, etc., R. Co. vs. Pennsylvania R. Co., 54 Fed. Rep. 730. No. 312. Amendment to Bill to Enjoin a Strike, Bringing in New Par- ties (i). [Caption.] To the Honorable, the Judges of said Court : Your orator, by way of amendment to his bill of complaint herein, by leave of court first had and obtained, humbly com- plaining, says: That it re-affirms and makes part hereof all and singular the allegations of the original bill herein : That each of said BILLS IN SPECIAL CASES. 4^5 defendant railway companies named in said bill has in its employment a large number of locomotive engineers who are members of the order or association known as the Brother- hood of Locomotive Engineers, an unincorporated association of railway locomotive engineers, and also a large number of firemen, who are in like manner members of an association or order known as the Brotherhood of Locomotive Firemen, which is as your orator is informed and believes, an unincor- porated association of railway locomotive firemen; and that each of said associations is controlled, as your orator is in- formed, by certain rules, regulations and by-laws by which all its members have sworn to obey; that one P. M. Arthur, whose full first name is unknown to your orator is the chief officer of said Brotherhood of Locomotive Engineers, and as such guides, directs and controls the actions of its members under the rules of said association, and as such exercises a con- trolling influence upon the actions of said members in all mat- ters treated by said rules and regulations. That one F. P. Sargent, whose first nanre is unknown to your, orator, is the chief officer of said Brotherhood of Locomotive Firemen and exercises a similar controlling influence upon the actions of its said members. That one of the rules and regulations or laws, so-called,, of said Brotherhood of Locomotive Engineers, as your orator is informed requires all its members who are in the employ of any railway company, whenever order to that efifect shalL be given by its said chief officer, to refuse to receive, handle, or carry, or assist in receiving, handling or carrying, cars of freight from any other railway company whose employes, members of said association, have engaged in a " strike " so- called, against their employer company. That such " strike " has been declared against your orator by the locomotive engi- neers in its employment who are members of said brother- hood, by and with the consent and approval of said 426 SUITS IN EQUITY. Arthur and under his direction, and they have quit the serv- ice of your orator and are no longer in its employ. And your orator says that said Arthur now gives out publicly and threatens that unless your orator shall submit to certain demands on the part of its said striking employes who have so quit its service and reinstate them in its employ and discharge the other engineers whom your orator has em- ployed since said strike was inaugurated, he will order all members of said brotherhood, employes of the other railroad companies defendant herein whose lines of railroad connect with your orator's railroad to refuse to receive from your orator any cars of freight or deliver any cars of freight to your orator, or to aid in any way in handling, carrying, or forwarding any cars which have been hauled over your ora- tor's road. That if said order be promulgated and continued, large numbers of the employes of defendant companies will refuse to obey the order of injunction heretofore issued herein and will in consequence thereof be compelled to quit the service of their respective companies as well as to be guilty of a vio- lation of said order of injunction. That the result of the pro- mulgation and continuance of said order will be to seriously interrupt and hamper the interstate traffic of large sections of the country and will entail enormous and incalculable losses upon the public and all the railway companies defendant here- in, as well as to your orator, and also upon all of their em- ployes. That said order or rule is in direct contravention of the Act of Congress in such cases made and provided, and is in fact intended and adapted to induce said employes of defend- ant companies to violate the law and orders of this honorable court. Said defendant Sargent, as the chief officer of said Broth- erhood of Locomotive Firemen, gives out and threatens that in case such order is made by said Arthur for said Brother- hood of Locomotive Engineers, he, the said Sargent, will BILLS IN SPECIAL CASES. 4^7 promulgate a similar order which shall be binding on said Brotherhood of Locomotive Firemen. That by the means aforesaid said Arthur and Sargent are conspiring and confed- erating with one another and others whose names are un- known to your orator, to induce the employes of the defendant companies to violate the law and the orders of this court ; and for the purpose of inducing defendant companies and their offi- cers and agents to injure your orator by refusing to inter- change interstate freight. Forasmuch as your orator has no adequate remedy at law; and can only have relief in this court, to the end therefore, that said Arthur and Sargent may, if they can, show cause why your orator should not have the relief herein prayed for and full, true and direct answer make to all the allega- tions of the original bill and this amendment thereto, but not under oath, answer under oath being hereby waived: Your orator prays that the said P. M. Arthur and said Sargent may be made parties defendant hereto, as if joined in the original bill herein ; that a provisional order may be issued out of and under the seal of this court, directed to said P. M. Arthur and Sargent, enjoining and restraining them from issuing, promulgating or continuing in force any rule or order of any kind which shall require or command any em- ployes of any of the defendant companies to refuse to receive, handle or deliver, or be in any way instrumental in refusing to receive, handle or deliver, any cars of freight from and to your orator, or from refusing to receive or handle cars of freight which have been hauled over your orator's road, and from in any way, directly or indirectly, endeavoring to persuade or induce any employes of the defendant companies not to extend the same facilities to your orator for interchange of traffic as are extended by their respective employes to other railway .companies. And in case such rule or orders shall have been promulgated by said defendants, your orator prays the court to issue its mandatory injunction herein requiring said de- 428 SUITS IN EQUITY. fendants, and each of them, to recall and rescind such orders and to instruct the members of said Brotherhood of Locomo- tive Engineers and Firemen, respectively to make no discrim- ination of any kind against your orator in the interchange of traffic as aforesaid. And your orator prays for such other and further relief as to the court shall seem equitable and proper. May it please your honors to grant to your orator, in addi- tion to the writ of injunction herein, a subpcena issuing out of this court in accordance with the equity practice, directed to said defendants requiring them and each of them, on a day to be named therein, to appear in this court and to make answer unto all and singular the allegations of the bill of complaint herein and of the amendment thereto, and to stand to and abide by all the orders and decrees of the court herein, and to do such other acts and things as are required by the prin- ciples of equity and good conscience. R. X., Solicitor for Complainant. State o£ , County of , ss. Personally appeared before the undersigned, a notary pub- lic within and for county, , R. X., who. being duly sworn says, that he is the solicitor and general counsel of the complainant corporation. The Toledo, Ann Arbor & North Michigan Railway Company; that he has read the foregoing amendment to its bill of complaint and knows the contents thereof; that as to such matters and things therein as are al- leged on information and belief, affiant believes them to be true, and the other matters and things therein stated are true in substance and in fact. R. X. Sworn to before me and subscribed in my presence this day of , A. D. . B. R., Notary Public, [Seal.'] County, . BILLS IN SPECIAL CASES. 4^9 (i) This amendment was made to bill in Toledo, etc., R. Co. vs. Penn- sylvania Co., see No. 312, 54 Fed. Rep. 730, to bring in officers of the labor* unions ordering strike. No. 313. Bill in Equity to Subject Property of Absent Defendant to Pay a Judgment (i). The Circuit Court of the United States, for the District of . - In Equity. No. ■ A. B vs. C. D E. F G. H To the Honorable Judges of the Circuit Court of the United States within and for the District of : A. B., of , plaintiiF herein, respectfully shows unto your honors that at the term, 1894, of this court, he recovered a judgment at law in cause No. , for dollars, and costs amounting to dollars, amounting in the aggregate to dollars, against C. D., which said judg- ment is still in full force and unreversed. And your orator further says that execution was duly issued upon said judgment to the marshal of said district on the day of , 1894, and levy was duly made upon the personal property of said C. D., and only the sum of dollars made upon said writ of execution, and the same was returned unsatisfied on the day of , 1894, leaving unpaid aiid still due upon said judgment the sum of dollars, with interest. And your orator further says that he is informed and be- lieves that the said C. D. has fled the country, and that certain property of his, to wit, money of or about the value of dollars, sufficient to satisfy the judgment, is still in the possession and under the control of one E. F., but which your orator is unable to reach by process of law; and your 43° SUITS IN EQUITY. orator is also informed that one G. H., an alien, residing in , without this district and the jurisdiction of this court, claims some interest or right to the money aforesaid now in the possession of said E. F., and the property of said C. D. Wherefore your orator prays that C. D., E. F., and G. H. be made parties defendant herein, and that process issue re- quiring them to appear and answer this bill of complaint; that said G. H. be required especially to answer (but not under oath) by what right or title he claims the money aforesaid, and to set forth his claims in this suit ; and that E. F. be required especially to answer how much money be- longing to said C. D. he has now in his possession, and what is the indebtedness due to him from the said C. D., and that after payment of all lawful and equitable prior claims the said money may be applied to the judgment recovered by your orator against said C. D. until further order of this court, and for such other and further relief as may be proper, just, and equitable. A. B., X. & X., Plaintiff. Solicitors for Plaintiff. {VeriUcation as in No. 279.) (i) As to proceedings in case of absent defendant in a federal court, see Desty's Fed. Proc, Sec. 25, and cases there cited, and R. S., Sec. 738. BILLS NOT ORIGINAL. 43 1 BILLS NOT ORIGINAL. No. 314. Petition for Leave to File Supplemental Bill. [Caption, as in an original bill.'] The petition of A. B.,the above plaintiff, respectfully shows that on or about the day of , your petitioner filed his bill in this honorable court against C. D., for the purpose of \state general object of original bill\, and praying \state the prayer verbativi\. And your petitioner further shows that the said, C. D., be- ing served with process of subpoena, appeared to the said bill, but has not yet put in his answer thereto. That after the appearance of the said defendant was entered, that is to say, on or about the day of , and before any further proceedings were had in the said cause \state the supplemental matter] ; wherefore your petitioner is advised that it is nec- essary to bring the said C. H. before this court as a party defendant to this suit. Your petitioner therefore prays that leave may be granted to him to file a supplemental bill against the said C. H., for the purpose of making him a party defendant to this suit with proper and apt words to charge him as such, and with such prayer for relief as may be proper, and for such other, etc. No. 315. Supplemental Bill (i). \Caption, address, and introduction, as in an original bill^ T*hat on or about, etc., your orator exhibited his original bill of complaint in this honorable court, against C. D., the 432 • SUITS IN EQUITY. defendant hereinafter named, as defendant thereto, thereby stating a certain memorandum of agreement, dated the day of , , and made between E. W., therein de- scribed, of the one part, and your orator of the other part, and signed by the said E. W., whereby the said E. W. agreed to sell to your orator a certain lot or piece of land called, etc., therein particularly described, and of which the said E. W. wasseizedinfee,forthesum of dollars; and further stating the delivery by the said E. W. of the abstract of his title, and the acceptance of such title by your orator; and further stating the death of the said E. W., intestate, and that he left the said J. W., his only son and heir at law; and that letters of administration of the estate and effects of the said E. W. had been granted by the surrogate of the county of to the said J. W. ; and further stating applications on the part of your orator to the said J. W. to perform the said agreement so entered into by his father as aforesaid, and his refusal to do so ; and charging that the said lot or piece of land, called, etc., formed part of a considerable estate called Hesseltine, the whole of which had, before the date of the said contract for sale, been mortgaged by the said E. W. to one J. S. for dollars, which mortgage debt was still due and owing; and charging that the said E. W. would, if living, be bound to redeem the said mortgage, in order to convey the said lot or piece of land to your orator free from incumbrances, and that the said J. W. was bound to do so to the extent of his father's assets, which your orator charged were amply suf- ficient for the same ; and praying that the said J. W. might be decreed specifically to perform the said agreement so entered into by the said E. W. as aforesaid, and to convey and procure all proper parties to join in conveying the said lot or piece of land comprised in the said agreement to your orator, or as he should direct, upon your orator paying to the said J. W. the sum of dollars, which your orator thereby offered to do, and in all respects to perform the said agree- ment on your orator's part; and in case the said J. W. should BILLS NOT ORIGINAL. 433 not admit assets of his said father sufficient to enable him to perform the said agreement, then that the usual accounts of the real and personal estate of the said E. W. might be taken ; and that your orator might have such other or further relief in the premises as the circumstances of his case might re- quire, and to your honor should seem meet. And your orator further shows unto your honor that the said J. W., being duly served with process of subpoena, ap- peared to your orator's said bill and put in his answer thereto, whereby he alleged, among other things, that he could not perform the said agreement of the day of , with- out first redeeming the said mortgage so made to the said J. S. as aforesaid, and that the assets of the said J. W. were not sufficient to enable him to do so. And your orator further shows that the said answer has been replied toby your orator, and witnesses have been exam- ined on both sides, but the proofs have not yet been closed; as by the said bill and proceedings, now remaining as of rec- ord in this honorable court, reference being had thereto, will appear. And your orator further shows, by way of supplement, that your orator has lately, and since the examination of wit- nesses in the said cause, discovered, as the fact is, that the said J. S. now is and always since the date of the said agree- ment has been ready and willing to concur in conveying the said lot or piece of land to your orator discharged from his said mortgage, upon receiving your orator's purchase-money in discharge, pro tanto, of the said mortgage debt. And your orator charges that such information was first given to your orator by means of a letter addressed by the said J. S. to Mr. X., your orator's solicitor, and dated, etc., part of which was in the words and figures following, that is to say: " Mr. W.'s refusal to carry into effect his agreement with Mr. B. is unaccountable to me, because he knows that I have always been willing and even desirons to confirm the sale, and to release the premises from my mortgage on re- 434 SUITS IN EQUITY. ceiving the dollars towards my debt. This, in fact, was understood between his father and myself at the time when the sale to Mr. B. was made"; as by such letter, reference being had thereto, will more fully appear. And your orator charges, therefore, that it is unimportant whether the said J. W. has assets of his father sufficient to redeem the mortgage debt so due to the said J. S. as afore- said, inasmuch as the said J. S. is willing to be partially re- deemed, and the purchase-money of your orator is sufficient for that purpose. And your orator charges that the said J. W. ought to be decreed to join with the said J. S. (whose concurrence your orator undertakes to procure) in conveying the said lot or piece of land to your orator, upon payment by your orator of the said sum of dollars to the said J. S., in part dis- charge of his said mortgage debt. To the end, therefore, that the said defendant may, if he can, show why your orator should not have the rehef hereby prayed, and may, upon his corporal oath, according to the best and utmost of his knowledge, remembrance, informa- tion and belief, full, true, direct and perfect answer make to all and singular the matters aforesaid, as fully and explicitly as if the same were here repeated and he particularly inter- rogated thereto ; and more especially that he may answer and set forth, in manner aforesaid, whether your orator did not, on or about, etc., or at some other and what time, exhibit his original bill of complaint in this honorable court against such person, and of or to such purport or effect as hereinbefore in that behalf stated, or against some other and what person, and of or to some other and what purport or effect, or how otherwise? And whether thereupon such proceedings were not had in the said cause as are hereinbefore in that behalf stated, or how otherwise? And whether your orator has not, since the examination of witnesses in the said cause, or at some other and what period, discovered, and whether it is not the fact that the .said J. S. now is, and whether or not he BILLS NOT ORIGINAL. 435 always, since the date of the said agreement, has been ready and willing to concur in conveying the said lot or piece of land to your orator, discharged from his said mortgage, upon receiving your orator's purchase money in discharge, pro tanto, of the said mortgage debt, or how otherwise? And whether such informatipn was not first given to your orator by means of such letter as hereinbefore in that behalf stated, or some other and what letter, or by some other and what means, or how otherwise, and when was such information first given to your orator? Whether such letter as is herein- before mentioned to bear date, etc., was not addressed by such person to such person, and whether it was not of such date, and partly in such words and figures, or of or to such purport or effect, as hereinbefore in that behalf stated, or addressed by some other and what person or persons, to some other and what person or persons, of some other and what date, and (with respect to the part thereof hereinbefore in that behalf mentioned) in some other and what words and figures, or of or to some other and what purport or effect, or how otherwise? Whether it is not, and whether not for the reasons hereinbefore in that behalf given, unimportant, for the purposes of these suits, whether the said defendant has assets of his father siifi&cient to redeem the said mortgage debt, or how otherwise? And whether the said defendant ought not to be decreed to join with the said J. S. in such conveyance as hereinbefore in that behalf stated, or in some other conveyance of the same nature, upon such payment by your orator as hereinbefore in that behalf mentioned, or some other and what payment, or how otherwise ; and if not, why not. And that your oratoi may have the same relief against the said J. W. as he might have had if the facts hereinbefore stated and charged by way of supplement had been stated in your orator's said original bill. And in case the said de- fendant shall continue to allege that he has not assets of the said E. W. sufficient for the redemption of the mortgage 436 SUITS IN EQUITY. debt so due to the said J. S. as aforesaid, then that he may be decreed to join with the said J. S. in conveying the said lot or piece of land comprised in the said agreement of the day of , unto your orator and his heirs, or as he shall direct, upon your orator paying to the said J. S. the said purchase-money or sum of . dollars towards the dis- charge of the said mortgage debt; your orator hereby ofifer- ing to pay such sum, and in all respects to perform the said agreement of the day of , on his part, and also undertaking to procure the concurrence of the said J. S. in such conveyance as aforesaid ; and that your orator may have such further or other relief in the premises as the circum- stances of his case may require, and to your honor shall seem meet. May it please, etc. [^process of subpcena], ( I ) New averments are properly alleged in a supplemental bill, and in it any party may be brought before the court who has been omitted to be introduced at the stage of the cause at which an amendment for that purpose may be made. Dow vs. Jewell, 45 Am. Dec, 371. Thus, where a complainant had no ground for proceeding originally, but subsequently becomes entitled to relief, he should file a new bill. Candler vs. Pettit, 19 Am. Dec, 399. And the assignee of complainant must make himself a party by supplemental bill ; he can not proceed in the name of the original party. Mills vs: Hoag, 31 Am. Dec, 271. But where a complainant has assigned his interest in the subject- matter of the litigation pending the suit, his assignee can not on a supplemental bill be substituted to his rights ; he must file an original bill in the nature of a supplemental bill. Tappan vs. Smith, 5 Biss., 73. New oral testimony, tending merely to corroborate evidence on the one side, or to contradict evidence on the other, on the points in issue, is not a sufficient foundation for a supplemental bill. No new evi- dence is a sufficient foundation for a supplemental bill, unless it be of such a nature that it would, if unanswered, require a reversal of the decree. Jenkins vs. Eldridge, 3 Story, 299. A bill stating previous proceedings of the court, not with a view to their alteration or amendment, but as a portion of the facts out of which the complainant's equity arises, is an original bill, though it is alleged to be a supplemental bill. Brooks vs. Brook, 38 Am. Dec, 310. After a case has been argued and has been under advisement, it is proper for the circuit court to deny the motion for leave to file a fur- BILLS NOT ORIGINAL 437 ther bill, making an essential change in the character and objects of the cause, by way of supplement and amendment. Snead vs. McCouU, 12 How., 407. See also Beach's Modern Eq. Prac, Sees. 490 and 505 ; and as to jurisdiction of federal courts in respect to citizenship and amount in controversy see Act of March 3, 1887, 25 Stat, at X,., 433; Desty's Fed. Proc, Sec. 84. No. 316. Supplemental Bill Against the Trustee of a Bankrupt Defendant. [Caption, address, and introduction, as in an original billi\ That your orator, A. B., did in or as of term, , exhibit his original bill of complaint in this honorable court against C. D., of , praying that an account might be taken of the personal estate, eflFects, etc. And your orator further shows that the said defendant, having been served with process to appear, appeared accordingly and put in his answer to the said bill, and your orator replied to the [said answer, but before any further proceedings were had in the said cause, and on or about the day of , the said C. D. has been duly found and declared bankrupt, and E. D., of , the defendant hereinafter named, having been since duly chosen trustee of the estate and effects of the said bank- rupt, and the title to all the estate and effects late of the said bankrupt, has vested in the said E. D., and therefore your orator is advised that he is entitled to the same relief against the said E. D. as he would have been entitled to against the said C. D. if he had not become bankrupt. To the end there- fore, etc. And that your orator may have the full benefit of the said suit and proceedings therein against the said E. D., and may have the same relief against him as your orator might or could have had against the said C. D. in case he had not become bankrupt ; or that your orator may have such further or other relief in the premises as to your honors shall seem meet. May it please, etc. 438 SUITS IN EQUITY. No. 317. Supplemental Bill to an Original and Amended Bill Filed by a Lessee for the Specific Performance of an Agree- ment to Grant a Further Lease. [^Caption, address, and introduction, as in an original bill^ That in or as of term, , your orator, A. B., exhib- ited his original bill of complaint in this honorable court against H. B., and -which said bill has been amended by order of this honorable court, thereby praying that the said defendant might be decreed specifically to perform his agree- ment with your orator, touching the lease of the farm and premises in the said bill mentioned, and to grant your orator a lease thereof for years, commencing from the expira- tion of his former lease, at the yearly rent of dollars, your orator being willing and ready to do and perform everything on his part required to be done and performed in pursuance of the said agreement. And your orator further shows that the said defendant appeared and put in his answer to the said original bill. As by the said bill and answer now remaining as of record in the honorable court, reference being thereunto had, will ap- pear. And your orator further shows, by way of supplement, that since the filing of the said original bill the said defendant has caused an action of ejectment to be commenced in the court of , for the purpose of turning your orator out of possession of the said farm and premises, and the said action is still de- pending in the said court. And your orator being advised that the said defendant can not support such action, and that your orator is entitled to a specific performance of the said agreement as prayed by his said amended bill, he has, by himself and his agents, several times applied to, and requested the said defendant to desist from proceeding in the said action, and he was in hopes that he would have complied with such fair and reasonable requests, as in justice BILLS NOT ORIGINAL. 439 and equity he ought to have done. But now so it is, may it please your honors, that the said H. B. refuses to comply with your orator's said requests, and insists upon proceeding in his said action, and to turn your orator out of possession of the said farm and lands, to the manifest wrong and injury of your orator in the premises. To the end, therefore, that, etc. ISee No. 230, and interrogate to the statements.] And that the said defendant may be restrained by the in- junction of this honorable court from proceeding in the said action, and from commencing any other action or pro- ceeding at law for the purpose of turning your orator out of possession of the said farm and lands. [And for further relief ^^ May it please, etc. \Pray subpoena and injunction against H. B. See notes to No. 315.] No. 318. Supplemental Bill in a Patent Case. For form, see under title "Patents." No. 319. To Perpetuate Testimony. [Caption, address, and introduction.] The plaintiff, A. B., of, etc., shows unto your honors that C. D., late of, etc., deceased, before and at the time of mak- ing his will hereinafter mentioned, was seized in fee of and in divers freehold estates, which are hereinafter more fully mentioned and described; and the said C. D., being so seized as aforesaid, and being of sound and disposing mind, memory and understanding, duly made and published his last wiU and testament in writing, bearing date the day of , signed by him, the said CD., and subscribed and attested according to law ; and which said will, with the attestation 44° SUITS IN EQUITY. thereof, is in the words and figures following : that is to say, [se^ out the will and the attestation verbatim\, as by the said will and the attestation clause thereof, reference being thereto had, will appear. And the plaintiff further shows unto your honors that the said C. D. departed this life on or about the day of , without having revoked or altered his said will, leaving his brother E. D., of, etc., the defendant hereinafter named, his heir at law; and upon the death of the said testator, the plain- tiff, under and by virtue of the said will, entered upon and took possession of all the said freehold estates thereby devised to the plaintiff for life, and the plaintiff is now in possession thereof. And the plaintiff hoped that no disputes would have arisen respecting the devises contained in the said will or the validity therepf. But now so it is, etc., the said E. D. pretends that the said will is void and ineffectual; and although he will not dispute the validity thereof during the lives of the subscribing witnesses thereto, yet he threatens and intends to do so when they are dead, so that the plaintiff may be deprived of their testimony. And the plaintiff further showeth that all of the said sub- scribing witnesses are upwards of seventy years of age and in feeble health \or^ are about to depart from the United States], and that the plaintiff fears the testimony of the said witnesses may be lost by their death [or, departure from the United States] before the cause can be investigated in a court of law. In consideration whereof, etc.; and that the plaintiff may be at liberty to have the several subscribing witnesses to said will examined, and that the plaintiff, if "necessary, may have a commission or commissions for the examination of the said subscribing witnesses to the said will, to the end that their testimony may be preserved and perpetuated ; and that the plaintiff may be at liberty to read and make use of the same on all future occasions, as he shall be advised. May it please your honors, etc. \_Pray for subpoena. See Form No. 275.] [Verification (i).] (l) See Story's Eq. Pleading, Sec. 305. BILLS NOT ORIGINAL. 44^ NO. 320. Of Revivor (i) (Before Decree) by the Administrator of the Plaintiff in the Original Suit. \Caption^ address^ and introduction^ as in an original bill^ That J. A., late of , but now deceased, on or about -, exhibited his original bill of complaint in this honor- able court against G. T., of , as the defendant thereto, thereby stating, etc., praying, etc. [Here state the prayer^ And the plaintiff further shows unto your honors that the said defendant, having been duly served with process for that purpose, appeared and put in his answer to said bill, as in and by the said original bill, etc. And the plaintiff fur- ther shows that some proceedings have been had before C. G., one of the masters of this court, to whom this cause stands referred, but no general report has yet been made in the said cause ; and that the said J. A. lately and on or about the day of , departed this life, having first made and published his last will and testament in writing, bearing date the day of , and a codicil thereto bear- ing date the day of , and thereby appointed M. C. and W. W. executors thereof. And the plaintiff further shows that the said M. C. and W. W. have renounced probate of the said will and codicil of the said J. A., deceased, and decline to act in the trusts thereof, and that the plaintiff has obtained letters of adminis- tration with the will annexed of the goods, chattels, rights, and credits of the said J. A., deceased, to be granted to him , by and out of the proper court, and has thereby become and now is his legal personal representative. And the plaintiff further shows that the said suit and pro- ceedings have become abated by the death of the said J. A., and the plaintiff is, as he is advised, entitled to have the said suit and proceedings revived against the said defendant G. T., and the said accounts by the aforesaid order of reference directed, prosecuted, and carried on, and to have the said 442 SUITS IN EQUITY. cause put in the same plight and condition as the same was in previously to the abatement thereof by the death of said J. A. To the end, therefore, that the said defendant may answer the premises; and that the said suit and proceedings which so became abated as aforesaid may stand revived, and be in the same state and condition as the same were in at the time of the death of the said J. A., or that the defendant may show good cause to the contrary. May it please your honors to grant unto the plaintiff a writ of subpoena to revive [and answer], issuing out of and under the seal of this honorable court to be directed to the said G. T., thereby commanding him at a certain day and under a certain penalty, to be there- in limited, personally to be and appear before your honors, in this honorable court, then and there [to answer the pre- mises and] to show cause, if he can, why the said suit, and the proceedings therein had, should not stand and be revived against him, and be in the same plight and condition as the same were in at the time of the abatement thereof; and fur- ther, to stand to, and to abide, such order and decree in the premises as to your honors shall seem meet. And the plain- tiff shall ever pray, etc. \W'here it is only necessary to pray a subpoena to revive, the words within brackets should be omitted^ (i) For requisites for a bill of revivor, consult Beach's Modern Eq. Prac, Sec. 486 ; Foster's Fed. Prac, Sec. 180. Upon a bill of revivor the sole questions before the court are, the competency of the parties, and the correctness of the bill to revive. General objections to the % original bill, grounded on its not showing a proper case for the inter- ference of a court of equity, should be reserved until after the revivor of the hill. Bettes vs. Dana, 2 Sumn., 383. Compare Oliver vs. Daca- tur, 4 Cranch C. C, 592 ; Kennedy vs. Bank of Georgia, 8 How., 586. BILLS NOT ORIGINAL. ^ 443 No. 321. Bill of Revivor in Patent Suit. To the Honorable the Judges of the Circuit Court of the United States for the District of . The A. B. Company, a corporation organized under and pursuant to the laws of the state of , and having its prin- cipal place of business in the city of , in said state, and being an inhabitant of the city of in said state, brings this its bill of revivor against L. H., E. H. and J. B., as executors of the last will and testament of S. H., deceased, and J. R. and H. H., surviving trustees, — and N. R., residuary legatee under the last will and testament of D. H., deceased. Said L. H., J. B., E. H., J. R., H. H. and N. R., being citizens of the state of and residents of the city of , in said state; and thereupon your orator complains and says that on or about the day of , your orator filed a bill in equity in this court against S. H. and D. H., alleging infringement by them of certain letters patent of the United States, which were numbered No. 130,961 and dated August 27, 1872, of which your orator was-^at that time, and is now, the owner. That thereafter the said S. H. and D. H., having been duly served with the writ of subpoena, appeared by counsel and filed their answer to said bill of complaint, to which an- swer a replication was filed on the part of your orator. That thereafter your orator proceeded to take proofs in support of its said bill of complaint; and thereafter said de- fendants proceeded to take proofs in support of their said answer and in defense of said actions. That thereafter said suit was brought to final hearing before the Honorable G. R. ; that said judge filed his decision on the day of , adjudging invalidity of the fifth claim of the patent — being the claim in suit — and dismissing the said bill of complaint, as by reference to said, decision reported in , will more fully and at large appear. 444 SUITS IN EQUITY. That thereafter your orator appealed to the United States Circuit Court of Appeals for the circuit from the deci- sion of the Circuit Court for the district of ; that the said appeal was argued before said court, and a decision made by said court, the opinion being written by Hon. H. R., adjudging the validity of said patent and that defendants had infringed the same and remanded the cause to this court, ordering a decree against said defendants restraining them from further infringement, and also granting a reference to a master to ascertain and report damages and profit caused by said infringement, — all of which will more fully and at large appear by reference to said decision reported in . That thereafter the accounting in this cause was commenced and voluminous proofs taken. That thereafter the master filed his report awarding nomi- nal damages to your orator against said defendants. That thereafter, on exceptions duly filed to said report, argument was had before His Honor G. R., on motion to confirm said master's report; that said judge filed an opinion on the day of , recommitting said accounting to the master for further action in accordance with said opinion. That no order has yet been entiered on Judge R.'s decision. That during the pendency of said accounting the defendant, D. H., died, leaving a last will and testament, which, on the day of , was admitted to probate in the Probate Court of county, , and letters executory thereupon were on said day of , duly issued out of said Pro- bate Court unto S. H., J. R. and H. H. That said will, after directing the payment of an incon- siderable percentage of the testator's estate as specified lega- cies to certain persons therein named,' directed the said execu- tors to hold in trust for the benefit of the testator's grand- children, for a period of time that has not yet expired, the sum of one million and five hundred thousand dollars, and to BILLS NOT ORIGINAL. 445 pay the rest and residue of testator's estate unto his daughter, N. R. That on the day of , said executors filed their final accounting in the office of the clerk of the Probate Court of the county of , whereby it appeared that they had paid said specific legacies, and that after paying to N. R. aforesaid a sum amounting to between three and four millions of dol- lars, they still retained in trust for the benefit of said grand- children of said testator the sum of one million and five hun- dred thousand dollars. That said account was approved by said surrogate and an order was entered in the said Probate Court on the day of , discharging and releasing said S. H., J. R. and H. H. from their duties as executors under said last will and testament, but directing them to continue to hold said trust fund of one million and five hundred -thousand dollars as di- rected in said last will and testament. That said S. H., J. R. and H. H. thenceforth continued to SO' act as trustees under said will as to said trust fund, and said J. R. and H. H. are now so acting. That the aforesaid S. H. died upon the day of , leaving a last will and testament, which on the day of , was admitted to probate in the Probate Court of county, , and letters executory thereupon were on said day of , duly issued out of said Probate Court unto L. H., E. H. and J. B., and still remain in full force and virtue. Wherefore your orator prays that the said cause may be revived by the decree of this honorable court, and that it may proceed to a decree in its favor in accordance with the prayer of the original bill of complaint herein. Your orator further prays that a writ of subpoena may is- sue in due form of law, directed to the aforesaid defendants, L. H., E. H. and J. B., as executrices and executor of the es- tate of S. H., deceased, and J. R. and H. H., as trustees, and 446 SUITS IN EQUITY. N. R. as residuary legatee under the will of D. H., deceased, and requiring them to appear and show cause, if any they have, why this cause should not be revived; and if no cause shall be shown by said defendants why said suit should not be revived, that a decree be entered reviving said suit in favor of your orator. And your orator will ever pray, etc. A. B. Company, By G. S., President. X. & X., Solicitors and of Counsel for Complainant. State of , County of , ss. G. S., being duly sworn, says that he resides in the city and county of , and is the president of the A. B. Company, the complainant herein ; that he has read the foregoing bill of revivor and knows the contents thereof, and that the same is true of his own knowledge. Deponent further says that the reason why this verification is not made by the complaint is that it is a corporation ; that deponent is an officer of the same, to wit, president. G. S. Sworn to before me this day of , A. D. . [Seal'] A. G., Notary Public, County, . BILLS NOT ORIGINAL. 447 NO. 322. Of Revivor and Supplement Where Both Parties in Original Bill are Deceased (i). \_CapHon, address, and introduction, as in an original ffill^ That A. B. and S. B. are the executors named and ap- pointed in and by the last will and testament of H. W., late of, etc., deceased, that on or about the day of July, , the said H. W. exhibited his bill of complaint in this honorable court against T. W., late of, etc., deceased, thereby praying that the said T. W. might be decreed by this honorable court to come to a just and fair account with the said H. W. for the principal and interest then due and owing to him on the mortgage security in the said bill mentioned, and might pay the same to the said H. W. by a short day to be appointed by this honorable court, together with his costs ; and in default thereof, that the said T. W. might stand ab- solutely barred and foreclosed of and from all manner of benefit and advantage of redemption or claim in or to the residue of the respective mortgaged premises in the said bill mentioned, and every part thereof. And the said defendant T. W., having been duly served with process, appeared thereto, and departed this life on or about the day of , without having put in his answer to the said bill. And your orators show unto your honors by way of sup- plement to the said original bill, that the said defendant T. W. departed this life intestate, leaving his wife E.W., a defendant hereinafter named, enceinte with a child since born and named A. W., and the said A. W. is now the sole heiress at law of the said T. W., deceased, and, as such, entitled to the equity of redemption of the said mortgaged premises. And your orators further show unto your honors that on or about the day of , , letters of administration of the goods, chattels, and effects of the said T. W., deceased, were duly granted by the court of unto his widow, the said E. W., who is thereby become his sole personal repre- sentative. 448 SUITS IN EQUITY. And your orators further show unto your honors that the said complainant H. W. departed this Hfe on or about the day of , having previously duly made and pub- lished his last will and testament in writing, bearing date on or about the day of , and thereof appointed your orators joint executors; and on or about the day of , your orators duly proved the said will in the said court of , and took upon themselves the burthen of the execution thereof. And your orators further show that upon the death of the said H. W. the said mortgaged premises became, and the same are now, vested absolutely at law in your orators, as his legal personal representatives, subject nevertheless to redemption, on payment of the principal money and interest thereby se- cured. And your orators further show unto your honors that the said suit having become abated by the death of the said T. W., your orators are advised that they, as the personal, re- presentatives of the said H. W., deceased, are entitled to have the same revived and restored as against the said E. W. and A.W. to the same plight and condition in which it was at the time of the death of the said T. W., and to have the same relief against the said E. W. and A. W. To the end, there- fore, that the said E. W. and A. W. may, upon their respective corporal oaths, etc. [Interrogate as to the statements.] And that the said E. W. and A. W. may answer the said original bill, and that they may be decreed by this honorable court to come to a just and fair account with your orators for the principal and interest now due and owing to your orators on the said mortgage securities, and may pay the same to your orators by a short day to be appointed by this honorable court, together with your orators' costs, and in default thereof, that the said defendants may stand and may be absolutely barred and foreclosed of and from all manner of benefit or advantage of redemption or claim in or to the said mortgaged premises, and every part thereof; and that the said suit may stand and BILLS NOT ORIGINAL. 449 be revived against the said defendants, and be in the same plight and condition in which the same was at the time of the decease of the said defendant T. W., or that the said E. W. and A. W. respectively may show good cause to the contrary. May it please, etc. (i) See note to No. 320. No. 323. Of Review to Examine and Reverse a Decree (i). \Caption^ address, and introduction.^ That in term, in the year , W. S., of, etc. (the defendant hereinafter named), exhibited his bill of complaint in this honorable court against your orator, and thereby set forth that, etc. \here insert the original bilf\. And your orator being served with a subpoena for that purpose, appeared and put in his answer to the said bill, to the effect following: \Here recite the substance of the answer\ And the said W. S. replied to' the said answer, and issue having been joined, and witnesses examined, and publication duly passed, the said cause was set down to be heard, and was heard before your honors, the day of last, when a decree was pro- nounced, which was afterwards passed and entered, in which it was set forth and recited, that it was at the hearing, on your orator's behalf, insisted that your orator had, by his answer, set forth that, etc. \here insert the recital and de- cree\. And the said decree has since, and on or about , been duly signed and enrolled, and which said decree your orator humbly insists is erroneous, and ought to be reviewed, reversed, and set aside for many apparent errors and imper- fections, inasmuch as it appears by your orator's answer, set forth in the body of the said decree, \here insert the appar- ent errors']. And no proof being made thereof, no decree ought to have been made or grounded thereon ; but the said bill ought to have been dismissed for the reasons aforesaid. ■450 SUITS IN EQUITY. In consideration whereof, and inasmuch as such errors and imperfections appear in the body of the said decree, and there is no proof on which to ground any decree to set aside the said rent-charge, your orator hopes that the said decree will be reversed and set aside, and no further proceedings had thereon. To the end, therefore, that the said W. S., etc. l^See No. 230.J And that for the reasons, and under the cir- cumstances aforesaid, the said decree may be reviewed, reversed, and set aside, and no further proceedings taken thereon, and your orator permitted to remain in the undis- turbed possession and enjoyment of the said rent-charge. \Prayer for subpoena in usual form ^ (i) To authorize a bill of review, under either the English or Ameri- can practice, error must appear on the face of the decree or pleadings, and the evidence at large can not be gone into. Seguin vs. Maverick, 76 Am. Dec, 117. And leave of the court must be obtained before filing the bill. Simpson vs. Watts, 62 Am. Dec, 392. Consult Beach's Modern Eq. Prac, Sec. 852 et seq. No. 324, ^ Petition to Appellate Court for Leave to File Bill of Review for New Matter in Court Below. The United States Circuit Court of Appeals for the Circuit. H. K., Extr., et al., Petitioner -r. .... , , . r, tj-h ' Petition for leave to file Bill vs. T-> TD r) J 4. of Review. R. R., Respondent. To the Honorable the Judges of said court: H. K., executrix of the estate of F. A., deceased, and a citizen and resident of the state of , on behalf of herself and of T. B., H. K. and L. R., as heirs at law of F. A., de- ceased, all citizens and residents of the state of , and on behalf of all the other heirs at law of the said F. A., deceased, such other heirs being numerous and their names and places BILLS NOT ORIGINAL. 451 of residence being unknown, brings this her petition against R. A., a citizen and resident of the state of , and re- spectfully shows unto the court : First. That petitioner has prepared and presents herewith a bill of review against defendant, which petitioner asks may be treated as a part of this petition, and reference made there- to for its contents, and which petitioner is advised she has a right to file in the Circuit Court of the United States for the District of , upon leave first had and obtained from this honorable court. Second. That petitioner has set out in said bill of review, exhibited herewith, the substance of the decree which petition- er seeks to have reviwed in said Circuit Court, and the plead- ings upon which said decree was based, and petitioner now asks for leave to file said bill of review. Third. Petitioner avers that on or about the day of , A. D. , defendant herein, R. A., filed in the Circuit Court of the United States for the District of , a bill against petitioner and others seeking a rescission of a certain sale of 14,804 acres of mountain lands lying in Frank- lin county, , which had, on or about , been -sold and conveyed to said R. A. by F. A., of whose estate petitioner was at the time of filing of said bill, and is now, the executrix, under the last will and testament of said Anderson ; that after prolonged litigation, a correct and succinct history of which and of the various steps taken in the cause is set out in the bill of review exhibited herewith, a decree was finally pro- nounced in favor of said R. A. against petitioner, in which it was decreed by the court that said sale should be rescinded, and the lands described therein should be reconveyed by com- plainant R. A. to petitioner, and that he should have and re- cover of petitioner the sum of $ . To secure the payment of said recovery, a lien was declared on the lands which the said Alger was ordered in said decree to reconvey to peti- tioner upon the payment of said judgment. In default of 452 SUITS IN EQUITY. payment of said decree within thirty days, a sale of said lands was ordered in satisfaction of the lien aforesaid. Said de- cree was entered by said Circuit Court on the day of . Said decree was not paid, petitioner having no means with which to pay same, the lands were sold and bought in by complainant R. A. for the sum of $ , and the decree cred- ited with the amount of his bid. Subsequently complainant R. A. proceeded against the estate of F. A., deceased, for the satisfaction of the balance of his said decree, and said estate, both personal and real, was exhausted in the effort to satisfy said decree, and there still remains a balance due thereon amounting to more than $ . Fourth. Petitioner avers that since the rendition of said decree of the day of , she has discovered that prior thereto, and during the pendency of the suit brought by com- plainant R. A. as aforesaid, said R. A. has sold and conveyed the mountain lands above referred to, to A. T., of , for a consideration amounting, petitioner is informed and be- lieves, to the sum of $ , and could not therefore at the time of the rendition of the decree aforesaid directing him to reconvey said lands to petitioner, have carried out the orders of the court, even if petitioner had paid off said decree. Peti- tioner avers that said lands were sold as aforesaid to the said A. T. some time in the month of , and a deed executed therefor by the said R. A. to the said A. T., but that said deed, on the advice of D. M., one of the attorneys of the said R. A., was not recorded, the said D. M. giving as his reason to said A. T. for advising against the recording of the deed at that time, that the placing of such a deed on record might complicate efforts the said R. A. was then making to clear up the title to the land. . Petitioner is informed, and so charges, that said original deed was thereupon destroyed and that after the entry of the decree of , aforesaid, and after the sale thereunder of said mountain lands and the bidding in of the same by said BILLS NOT ORIGINAL. 453 R. A., a new deed was executed and placed on record in the register's office of Franklin county, , on , convey- ing said lands to said A. T. The consideration recited in said deed is " one dollar and other valuable considerations then paid." Petitioner is informed, and so charges, that no new consideration passed from said A. T. to said R. A. at the time of the execution of said last-named deed, but that the consideration therefor was the original consideration which passed from the said A. T. to said R. A. at or about the time of the execution of the first deed, in , and that the said R. A. has been ever since the time of the sale of said lands by him to said A. T., in' , in the full enjoyment of said con- sideration.' Petitioner is advised and charges that the act of said R. A. in making a sale of said mountain lands to the said A. T. in 1897, was a positive ratification of the purchase by R. A. from F. A., which purchase the said R. A. was then seeking to re- scind, and that said act was such a parting with the title to said lands as then and there estopped the said R. A. from pur- suing further his suit to rescind. Petitioner is advised, and so charges, that if the facts with reference to said sale by R. A. to A. T. had been known to the court at any time before the final decree in the suit for rescis- sion the court would have rendered no judgment against her, but would have denied defendant R. A. the relief sought, and have dismissed his said bill. Petitioner avers that said facts with reference to said sale by defendant R. A. were purposely concealed from the court and from petitioner, and a fraud thereby worked upon petitioner in that she was prevented from taking advantage of her legal right to have had suit for re- scission dismissed because of said act of defendant R. A. in making a sale of said lands during the pendency of said suit. Petitioner avers that the defendant R. A., by the sale of said lands to said A. T. as aforesaid, and the concealment of 454 SUITS IN EQUITY. the fact from petitioner, has thereby through the instrumental- ity of the court, done the petitioner and the estate she repre- sents a great wrong, in that after having sold said lands to the said A. T. and received the consideration therefor in , he has again been paid for these same lands to the ex- tent the entire estate of F. A. has proved sufficient to satisfy the decree of the day of . Fifth. Petitioner avers that prior to the rendition of the aforesaid decree of , she knew nothing of the sale of said mountain lands by defendant R. A. to A. T., in February, , as aforesaid, and had no means of knowing of said sale, the deed to said lands having been withheld from the record. • Petitioner avers that the first information she obtained with reference to said sale, was furnished her by the attorneys, Messrs. X. & X., of , who had represented petitioner in the R. A. suit for rescission in the Circuit Court aforesaid from the time of the filing therein of the petition to rehear un- til the first descision of the case by that court. Said attorneys wrote to said petitioner in August, , to come to for a conference with them. This she did, and then and there learned for the first time of said sale. Said attorneys stated to her that they had been informed of the said sale by A. T. himself, and also by his partner or business manager, Mr. A. F., of , both of whom had recently been in negotiating a sale of said lands which the said A. T. was then contemplating making to parties in . Petitioner thereupon employed said attorneys to investigate the matter fully, and instructed them if they were satisfied as to the fact of such sale by defendant R. A. to the said A. T., to take such steps as they might deem best for the protection of petitioner and of the estate she represents. Petitioner has no knowledge or information concerning said sale, except such as has come to her through the attorneys aforesaid, and as they have at first hand what has been com- BILLS NOT ORIGINAL. 455 municated by them to her, petitioner hereto attaches as a part of this petition, marked respectively. Exhibits " A " and " B," the affidavits of two of said attorneys, namely, R. H. and D. L. Sixth. Premises considered, petitioner prays: 1st. That respondent R. A. be served with notice of the filing of this petition and with printed copy thereof and re- quired to show cause on a day named why the relief sought therein should not be granted. If respondent R. A. cannot be found within the jurisdiction of this honorable court, then that notice be served upon Messrs. R. Y. and G. Y., or either of them, they being attorneys at law of , and respondent's counsel in the suit wherein the decree aforesaid was obtained and still are attorneys of said R. H. in matters pertaining to said litigation. 2d. That at the hearing an order be made by the court •granting petitioner leave to file against respondent R. A. in the Circuit Court of the United States for the District of , a bill of review in behalf of petitioner and the other com- plainants named therein, a copy of which bill is attached to and made a part of this petition, seeking to have reviewed, re- versed and set aside a certain decree for $ pronounced by the court against petitioner on the day of , in the case of R. A. vs. H. K., executrix, etc., et al., No. -. X. & X., [Verification.] Solicitors for Petitioner. When it is desired to file a bill of review in a Circuit Court after an appeal has been taken to an Appellate Court and a decree rendered in such Appellate Court the application for leave to file must be made to the Appellate Court. Southard vs. Russell, i6 How. 546; Kingsbury vs. Buckner, 134 U. S. 650-671 ; Bank vs. Taylor, 4 C. C. A. 55, S3 Fed. Rep. 8S4; Shakers vs. Watson, 77 Fed. Rep. 513. The application is made by petition for leave and copy of the pro- posed bill of review is regularly exhibited to the court with the petition. The case is docketed and copy of petition, bill of review and evidence printed and served on the adverse party or his counsel of record in the original suit. An order is taken fixing time for reply proofs. 456 SUITS IN EQUITY. filing briefs and hearing. The case then comes on for argument and decree granting leave or dismissing the petition. No. 325. Petition for Leave to File a Bill of Review for New Matter. [^Caption.^ The petition of A. B., tlie above plaintiff, respectfully shows that on or [about the day of , your peti- tioner filed his bill in this honorable court against C. D. for the purpose of [state general object of original bill], and pray- ing {state the prayer verbatim]. And your petitioner further shows that the said C. D., being served with process of subpoena, appeared to the said bill and put in his answer thereto, to which a replication was filed. And the said cause was thereupon examined on both sides, and the proofs closed. And that the said cause was brought to a hearing before your honor on , whereupon a decree was made to the following effect [set forth, substance of decree]. And your petitioner further shows that such decree has since been duly enrolled. And your petitioner further shows that since the time of pronouncing the said decree your petitioner hath discovered new matter of consequence in the said cause; particularly that E. F., deceased, the uncle of the said C. D., of whom the said C. D. claims to be sole heir at law, left two sons and a daughter him surviving, named respectively, etc., who were his heirs at law ; and that such sons and daughter are still alive and residing at, etc. ; which new matter your peti- tioner did not know, and could not by reasonable diligence have known, so as to make use thereof in the said cause, pre- vious to and at the time of pronouncing the said decree. Your petitioner therefore prays that he may be at liberty BILLS NOT ORIGINAL. 457 to file a bill of review for the purpose of having the said de- cree reviewed, reversed and set aside, and that no further proceedings may be had under the same. And your petitioner, etc. No. 326. Bill of Review for New Matter (i). \Caption, address^ and introduction.] That on or about , C. D., of, etc., the defendant herein, exhibited his bill of complaint in this honorable court against the plaintiff, and thereby set forth that, etc. [Here insert the original bill^ And the plaintiff being duly served with process for that purpose, appeared and put in his answer to the said bill, to the effect following: [Here state the substance of the answer.] And the said C. D. replied to the said answer, and issue having been joined and witnesses examined, and the proofs closed [or., the said C. D. joined issue on the answer, and], the said cause was set down to be heard, and was heard before your honors, on the day of , when a decree was pronounced, whereby your honors decreed that the plain- tiff's title to the premises was valid and effectual, after which the said C. D. petitioned your honors for a rehearing, and the said cause was accordingly reheard, and a decree of reversal made by your honors on the ground of the said C. D. being the heir at law of the said E. F., deceased, and which said decree of reversal was afterwards duly signed and enrolled, as by the said decree and other preceedings now remaining filed as of record in this honorable court, reference being thereto had, will appear. And the plaintiff shows unto your honors, by leave of this honorable court first had and obtained for that purpose, by way of supplement, that since the signing of the said decree of reversal the plaintiff has discovered, as the fact is, that the said E. F. was, in his lifetime, seized in his demesne as of fee, of and in the hereditaments- and premises in question in the 458 SUITS IN EQUITY. said cause, and that the said E. F., while so seized, and when of sound mind, duly made and published his last will and testament in writing, bearing date on the day of , which was executed by him, and attested according to law, and thereby gave and devised unto the said J. W., his heirs and assigns forever, to and for his and their own absolute use and benefit, the said hereditaments and premises in question in the said cause (to which the plaintiff claims to be entitled as purchaser thereof from the said J. W.). And the plaintiff further shows unto your honors that since the said decree of reversal was so made, signed, and enrolled, as aforesaid, and on or about , the said C. D. departed this life intestate, leaving G. H., of, etc. the defendant herein his heir at law, who, as such, claims to be entitled to the said hereditaments and premises, in exclusion of the plain- tiff. And the plaintiff is advised and insists that, under the aforesaid circumstances, the said last-mentioned decree, in consequence of the discovery of such new matter as aforesaid, ought to be reviewed and reversed; and that the first decree declaring the plaintiff entitled to the said hereditaments and premises should stand, and be etablished and confirmed; and for effectuating the same, the said several proceedings, which became abated by the death of the said C. D., should stand and be revived against the said G. H., as his heir at law. To the end, therefore, etc. [See No. 230.] And that the said suit may be revived against the said G. H., or that he may show good cause to the contrary, and that the said last decree, and all proceedings thereon, may be reviewed and re- versed, and that the said first-mentioned decree may stand and be etablished and confirmed, and be added to, by the said will being declared a good and effectual devise of such hered- itaments and premises as aforesaid; and that the said G. H. may be decreed to put the plaintiff into possession of the said hereditaments and premises, and in the same situation, in every respect, as far as circumstances will now permit, as the plaintiff would have been in- case such last decree had BILLS NOT ORIGINAL. 459 never been pronounced and executed ; and that the plaintiff may have such other, etc. May it please, etc. l_Pray subpoena to revive and answer against the said G. H?[ See notes to No. 320. No. 327. To Suspend a Decree. [Caption, address, and introduction^ That your orator in the year borrowed the sum of dollars from C. D., of , the defendant herein, and in order to secure to the said C. D. the repayment there- of, with legal interest, your orator, by an indenture bear- ing date the day of , in the year , granted, bargained, sold, and demised unto the said C. D., his execu- tors, administrators, and assigns, all that \describe premises\ for the term of one thousand years, subject to redemption on payment by your orator of the said sum of dollars and interest, as therein mentioned, as by the said indenture, refer- ence being thereunto had, will more fully appear. And your orator further shows unto your honors that the said C. D., on or about , exhibited his bill of complaint in this honorable court against your orator, for payment of what was then due to him for principal and interest on the said security, by a short day to be appointed for that purpose, or that your orator might be absolutely debarred and fore- closed from all right and equity of redemption in the said mortgaged premises ; and your orator having put in his an- swer thereto, and submitted to pay what should appear to be due from him, the said cause came on to be heard before your honors on or about , when it was referred to R. V., one of the masters of this honorable court, to take an account of what was so due from your orator to the said C. D., as afore- said, and your orator was ordered to pay the same on the day of , or to be absolutely foreclosed of all right and equity of redemption in the said mortgaged premises ; 460 SUITS IN EQUITY. as by the said proceedings now remaining as of record in this honorable court, reference being thereunto had, will appear. And your orator further shows unto your honors that your orator was duly prepared to pay what should be reported to be due from him ; but before the said master made his re- port, your orator was sent in great haste, by the commands of his majesty, ambassador to the court of Paris on special and weighty aflFairs of state, which admitted of no delay ; and your orator was therefore unable to make any provision for the payment of what should be so found due from him as aforesaid. And your orator further shows unto your honors that the said master, during your orator's absence, made his report, whereby he found that the sum of dollars was due to the said C. D. for principal and interest from your orator, but no further proceedings have since been taken in the said cause. And your orator being ready and willing to pay the said sum of dollars to the said CD., and all subsequent interest thereon, is advised, that on payment thereof, he is entitled under the circumstances aforesaid to have so much of the said decree as relates to the foreclosure of your ora- tor's right and equity of redemption in the said mortgaged premises suspended, and on payment thereof, to have a re- conveyance of the said mortgaged premises from the said C. D. for the remainder of the term so granted to him as afore- said. To the end, therefore, etc. {Interrogate to the foregoing statement^ and particularly the cause alleged for suspension of the decree^ And that the subsequent interest on the said sum of dollars, so reported to be due from your orator as afore- said to the present time, may be computed by the direction of this honorable court, and that on payment of the said sum of dollars, and such interest as aforesaid, the said decree of foreclosure may be suspended, and the said C. D. directed, at the expense of your orator, to reconvey the said mortgaged premises to your orator, or as he shall appoint, freed and absolutely discharged from the said mortgage. \And for general relief^ May it please, etc. {End by praying sub- poena against C. /?.] BILLS NOT ORIGINAL. 461 No. 328. To Set Aside a Decree obtained by Fraud (i). [Caption, address, and introduction!] That T. B., of, etc., deceased, the plaintiflf's late father, during his life, and on or about the day of , was seized in his demesne, as of fee, of and in the real estate hereinafter particularly described; and by indenture of that date, made between the said T. B. of the one part, and C. D., of, etc., the defendant herein, of the other part, the said T. B., in consideration of dollars, bargained, sold, and con- veyed unto thesaid C. D., his heirs and assigns, all, etc. [de- scribe the mortgaged premises], subject to redemption on pay- ment of the said principal money and lawful interest at the time therein mentioned, and long since past ; as by the said in- denture, reference being thereto had, will more fully appear. And the plaintiiF further shows that the said T.B. departed this life on or about , leaving the plaintiff his heir at law, and only child, then an infant under twenty-one years of age, that is to say, of the age of seven years or thereabouts, him surviving. And the plaintiff further shows that during the plaintiff's minority, on or about , the said C. D. filed his bill of complaint in this honorable court against the plaintiff for a foreclosure of the plaintiff's right and equity of redemption in the said mortgaged premises ; but the plaintiff was not represented in such bill to be then an infant ; and the said CD. caused and procured one L. M., since deceased, who acted in the management of the affairs of the plaintiff's said father, to put in an answer in the name of the plaintiff, and without ever acquainting the plaintiff, or any of his friends or rela- tions there>vith ; in which said answer a much greater sum was stated to be due from the plaintiff, on the said mort- 462 SUITS IN EQUITY. gage security, to the said CD., than in fact was really owing to him, and for which it was untruly stated that the said mortgaged premises were an insufficient security; and in con- sequence of such answer being put in, the said C. D. after- wards, in conjunction with the said L. M., on or about , ob- tained an absolute decree of foreclosure against the plaintiff, which the plaintiff has only lately discovered, and of which the plaintiff had no notice, and in which said decree no- day is given to the plaintiff, who was an infant when the same was pronounced, to show cause against it when he came of age ; as by the said proceedings now remaining as of record in this honorable court, reference thereto being had, will more fully appear. And the plaintiff further shows that the plaintiff, on the day of last, attained the age of twenty-one years, and shortly afterwards, having discovered that such trans- actions had taken place during his minority as aforesaid, by himself and his agents, represented the same to the said C. D., and requested him to deliver up possession of the said mortgaged premises to the plaintiff, on being paid the prin- cipal money and interest, if any, actually and fairly due thereon, which the plaintiff offered? and has at all times been ready to pay, and which would have been paid by the personal representatives of the said T.B.out of his personal assets, during the plaintiff's minority, had any application been made for that purpose. And the plaintiff hoped that the said C. D. would not have insisted on the said decree of foreclosure, so fraudulently obtained as aforesaid, but would have permitted the plaintiff to redeem the said mortgaged premises, as he ought to have done. But now so it is, etc., the said CD., etc., pretends that the said decree of fore- closure was fairly and properly obtained, and that a day was therein given to the plaintiff, when of age, to show cause against the same, and that the plaintiff has neglected to do so, and that the plaintiff is neither entitled to redeem, nor to travel into the said accounts ; whereas the plaintiff charges the BILLS NOT ORIGINAL. 463 contrary thereof to be true, and .that the plaintiff only at- tained the age of twenty-one years on the said day of , and that he has since discovered the several matters aforesaid, by searching in the proper offices of this honorable court; and the plaintiff expressly charges that, under the circumstances aforesaid, the said decree, so fraudulently obtained, as heretofore mentioned, ought to be set aside, and the plaintiff ought not to be precluded thereby, or in any other manner, from redeeming the said mortgaged premises, of which the said C. D. has possessed himself, by such means as aforesaid. All which actings, etc. In consideration whereof, etc. To the end, etc.; and that the said decree of foreclosure may, for the reasons and under the circumstances aforesaid, be set aside, by this honorable court, and declared to be fraudulent and void; and that an [account may be taken of what, if anything, is now due to the said C. D. for principal and interest on the said mortgage ; and that an account may also be taken of the rents and profits of the said mortgaged premises, which have, or without his willful' default might have been, received by or on behalf of the said CD., and if the same shall appear to have been more than the principal and interest due on the said mortgage, then that the residue thereof may be paid over to the plain- tiff, and that the plaintiff may be at liberty to redeem the said mortgaged premises, on payment of thfe principal and interest, if any, remaining due on the said security ; and that the said C. D. may be decreed, on being paid such prin- cipal money and interest, to deliver up possession of the said mortgaged premises, free from all encumbrances, to the plaintiff, or as he shall appoint, and to deliver up all title deeds and writings relating thereto. \General relief^ May it please, etc. [Prayer for subpoena against C. D., etcl (i) See Beach's Modern Eq. Prac, Sec. 884, and cases cited. 464 SUITS IN EQUITY. No. 329. Cross-Bill (General Form), [Caption.] The cross-bill of C. D., the defendant, to the bill and the amendment thereto of A. B., of — — , in the state of . To the Honorable, the Judges of the Circuit Court of the United States in and for the District of , Division. And now coming, the above-named respondent, C. D., by the leave of this honorable court first had and obtained, files his cross-bill herein, against the plaintiff and all and singular the said defendants, as if their names had been fully here re- peated, and represents to the honorable court as follows : That he has an interest and lien upon all of the premises in said petition described, and is entitled to be heard herein for the reasons following. This defendant represents that all the defendants in said petition named, have been duly served with process herein or have voluntarily entered their appearance in this case. [Here state the grounds for affirmative relief as in an original bill, and facts connecting same with the original bill to show that it is proper matter of a cross-bill and conclude with prayer for relief, and for a subpoena and verify same with affidavit as to its truth.'] (i) A cross bill is regularly filed at the time the answer is due and before replication. It is discretionary with the court to grant or refuse leave to file a cross bill after time for answer ; see Indianapolis R. Co. vs. Liverpool, etc. Insurance Co., 109 U. S. 168; Morgan's Co. vs. Texas Cent. Ry. Co., 137 U. S. 171 (202.) The court will not ordinarily grant leave to file a cro-ss bill which involves taking evidence in a case, which has been heard on proof, Rogers vs. Riessner, 31 Fed. Rep S9i ; but it may be granted when no new testimony is required. See Neal vs. Foster, 34 Fed. Rep. 496. The cross bill should be separate from the answer, although they may both be filed within the same cover; Ritchie vs. McMuUen, 25 C. C. A. SO, 79 Fed. Rep. 522. A cross bill is necessary to warrant the granting of affirmative relief to BILLS NOT ORIGINAL. 465 a defendant; Wash. R. Co. vs. Bradleys, 10 Wall. 302; Carnochan vs. Christie, 11 Wheat. 446; Ford vs. Douglas, 5 How. 167. It seems that any defendant to the suit whether he was an original de- fendant or has become so by intervention or brought in by supplemental or amended bill may file a cross bill. A stranger will not ordinarily be per- mitted to file a cross bill ; Bronson vs. La Crosse R. Co., 2 Wall. 303. It is not settled whether a person not a party to the suit can or cannot be brought in to the litigation as a defendant to a cross bill. Mr. Justice Curtis observed in Shields vs. Barrows, 17 How. 14s, that " new parties cannot be introduced into a cause by a cross bill." It has been argued with much force in a subsequent case, Brandon vs. Prime, No. 1810, Fed. Cas., 14 Blatch. 371, where the authorities are considered at length, that a dis- tinction should be observed, namely; that in a cross bill brought for dis- covery in aid of defense merely to the original bill no new parties can be made, but that where the cross bill shows that there is a party to the sub- jects of the litigation as presented by it who has not been before made a party or appeared to be a necessary one and then does appear to be such, that party may be brought in by the cross bill. No one is required to file a cross bill unless the court orders him to do so for he may seek the same relief by an original bill; Morgan's Co. vs. Ry. Co., 137 U. S. 171. As to the frame of a cross bill see Bates, Fed. Eq., sec. 380. The sub- poena may be served by substitution, Bates, Fed. Eq., sec. 382; Wash. R. Co. vs. Bradleys, 10 Wall. 302; Johnson R. Sign. Co. vs. Union Switch & Sign. Co., 43 Fed. Rep. 331 ; Gregory vs. Pike, 79 Fed. Rep. 520. A cross bill which avers additional facts, and seeks affirmative relief, — in other words, a cross bill which contains in itself all the necessary aver- ments of an original bill, — is not affected by the dismissal of the original bill. It remains for disposition as an original suit. Holgate vs. Eaton, 116 U. S. 33; Chicago & A. R. Co. vs. Union RoUing-Mill Co., 109 U. S. 702; Lowenstein vs. Glidewell, s Dill. 329, Fed. Cas. No. 8,575; Markell vs. Kasson, 31 Fed. 104; San Diego Flume Co. vs. Souther, go Fed. Rep. 164. No. 330. Cross-Bill Claiming Interest in Funds in Possession of Assignee for Creditors. \_Caption.] To the Honorable Judges of the said Court : Mary T. Hill, one of the defendants in this cause, who is a citizen of the state of New York as stated in her answer filed herein on Febraury 5th ,1897, as appears of record brings this her cross-bill against C. W. Edmonds as assignee a de- 466 SUITS IN EQUITY. fendant, and all the plaintiffs in this suit, and all, the other defendants therein who are creditors of the Hill Shoe Com- pany, including such as have made themselves parties to this suit by answer, or claim and petition, all as more fully ap- pears of record, and by the statements of the bill and the several other pleadings, and all of them are residents of states, other than the state of New York, and therefore states and shows she adopts and repeats all the allegations of her said answer herein filed, and prays that the same may be taken and considered as a part of this her cross-bill as fully as if herein incorporated and repeated. And by way of particularity and certainty plaintiff states and shows that after the arrangement and agreement had been made in the manner and for the pur- poses stated in her said answer, all as more fully appears thereby, and by the exhibits therein referred to, to which spe- cial reference is now here made and which are prayed to be taken as a part of this her cross-bill, she in order to carry out her part of the said arrangement and agreement, and on the faith thereof, to wit, on January ist, 1890, made and acknowl- edged and delivered the deed to the Hill Shoe Company, a copy of which is made Exhibit " F " to her answer herein- before referred to, and the original of which is to be produced in court as a part of this her cross-bill, and prayed to be taken in connection therewith. In and by the said deed it was re- cited that for and in consideration of the contract therefore entered into by and between the firm of Hill & Sons and the 'Hill Shoe Co., whereby the said Hill & Sons had sold and transferred to the said Hill Shoe Company and its assets and property of every description, upon certain terms and condi- tions, which more fully appear by the contract, reference thereto being had, and for the consideration of the perform- ance in every particular of the terms arid provisions of the said contract and of the agreement of the Hill Shoe Com- pany to assume and pay each and all the debts of the late firm of Hill & Sons, of which plaintiff's testator, Ira M. Hill, BILLS NOT ORIGINAL. 467 then deceased, had been a member, and also to pay the indi- vidual debts and liabilities of the. said Ira M. Hill, then ex- isting of every nature and description, and to indemnify plaintiff as the executrix and the sole devisee of the said Ira M. Hill from and against all such debts and liabilities, and for other considerations received, and to be received by her, she granted, bargained, sold and conveyed to the said Hill Shoe Company a large quantity of lands situated in the state of Arkansas. A description of the said lands appears in the said deed Exhibit " E " to her answer aforesaid and is as fol- lows: First. In Prairie, Arkansas. The north fractional half of the northeast fractional quarter of Section Twenty (20), in Township Two (2) North, Range Four (4) West, con- taining 79.90-100 acres of land. Two undivided thirds of the East half of Section Twenty-five (25) in Township one (i) South, Range Seven (7) West; the whole half section containing 320 acres. The Southeast quarter of the North- east quarter of Section Thirty-one (31), and the East half of the Southeast quarter of Section Thirty-one (31) and the Southwest quarter of the Southwest quarter of Section Thir- ty-two (32), all in Township Three (3) North, Range Eight (8) West, containing together 160 acres (2) in Craighead County, Arkansas. The West half of the Northwest quar- ter of Section 33. The South half of the Northeast quarter, and the Northwest quarter of the Northeast quarter of Sec- tion Thirty-two (32), all in Township Thirteen (13) North, Range Four (4) East, containing 200 acres. Third. In Monroe County, Arkansas. The West half of the Southeast quarter, the East half of the Southwest quar- ter of Section Thirty- four (34) in Township One (i) North, Range Five (5) West, containing 160 acres. The East half of the Southeast quarter of Section Twenty-one (21), in Township One (i) South, Range Three (3) West, contain- ing 80 acres. The North half of the Southwest quarter of 4^8 SUITS IN EQUITY. Section Twenty-two (22) in the same Township and Range, containing 80 acres. The Southeast quarter of Section Thir- teen (13) in Township One (i) South, Range Four (4) West, containing 160 acres. And the West half of the South- west quarter of Section Twenty-three (23), in Township Three (3) North, Range Four (4) West, containing 80 acres. Fourth. In White County, Arkansas. The West half of the Northwest quarter, and the Northwest quarter of the Southwest quarter of Section Nine (9), and the Southeast quarter of the Southeast quarter of Section Five (5), and the Southeast quarter of the Northeast quarter and the North half of the Southeast quarter of Section Eight (8), all in Township Six (6) North, Range Six (6) West. And the Southwest quarter of the Southwest quarter of Section Twen- ty-nine (29), in Township Seven (7) North, Range Six (6) West. And Lot No, Five ( 5 ) in Markham's addition to the town of West Point, in the said County of White. Fifth. In St. Francis County, Arkansas. The Southeast quarter of Section Twenty-eight (28) in Township Four (4) North, Range One (i) East, containing 160 acres. And plaintiff further states and shows, that likewise, in pursuance of the arrangement and agreement aforesaid, and in order to carry out her part of the same, and on the faiith thereof she likewise, and fof the considerations aforesaid, and none other, on the said January ist, 1890, made to the Hill Shoe Com- pany a deed a copy of which, with the acknowledgment there- on, and certificates of record thereto attached, is filed with her answer aforesaid, and marked Exhibit " G " thereto, and the original of which is held subject to the order of the court, and will be produced for the purposes of this suit. In and by the said deed it was recited in substance, as has been recited in the deed first stated, that then and thereby, and for the considerations received, and to be received, as therein stated, plaintiff here granted, bargained, sold and conveyed to the said Hill Shoe Company a large quantity of valuable lands. BILLS NOT ORIGINAL. 4^9 situated in Shelby county, Tennessee. Tiie description of the said lands will appear by the said deed as will also the other terms and conditions thereof, to which reference is hereby made for particularity and certainty. The said land is de- scribed as follows: First. A lot situated in Memphis, Shelby County, Tennes- see, bounded and described as follows: Beginning at the in- tersection of the North line of Court Street, with the East line of Third Street, running thence East with Court Street, 74 feet 3 inches; thence Northwardly at right angles with Court Street, 148 feet 6 inches to the alley between Jefiferson and Court Streets; thence West with the said alley 74 feet 3 inches to Third Street; and thence South with Third Street, 148 feet 6 inches to the beginning, the same being numbered on the plan of Memphis as the West half of lot No. 413. Second. Also a lot in Memphis, Tennessee, described as follows : Commencing at the Southeastwardly corner of Lot No. 227, at the intersection of second alley with the street on the North side of Court square; thence running Westwardly along the line of said street on the Nqrthernly side 47 feet 3 inches, more or less, to the line of the lot formerly awned by Henry G. Smith, deceased; thence Northwardly along Henry G. Smith's line 74 feet 3 inches; thence Eastwardly 47 feet 3 inches, more or less, to the Westwardly line of second alley; and thence Southwardly along the Westwardly line of second alley 74 feet 3 inches to the place of beginning, the said lot including all of lot No. 227 and 10 feet 3 inches more or less of lot No. 226, on the Eastwardly side of lot No. 226, as de- scribed on the plan of Memphis. Third. And also the following described property situated in Shelby County, Tennessee, to wit : A tract of land in Civil District No. 16, on the North side of the Memphis & Charles- ton R. R., and about one-third of a mile distant and adjoining the tract of Eppy White, about ten miles East of Memphis, and consisting of several parcels bought from Littleton Hen- 47° SUITS IN EQUITY. derson and Arthur Pillow and James M. Brooks and C. L. Brooks and F. S. Simpson and Wilson Sanderlin, and the shares of Elijah Brooks, in the estate of his father, being about five hundred acres in all, and being the home place on which the said Elijah Brooks once resided and the same prop- erty conveyed by Elijah Brooks to Henry G. Smith as trustee, by a deed to be found of record in the office of the register of Shelby County, Tennessee, in Book 51, pp. 86 and 87; and the same property also described in the deed made by Henry G. Smith as trustee to Ira M. Hill, dated the 12th day of June, 1871, and to be found of record in the office of the Register of Shelby Co., Tenn., in Book No. 80, p. 378 — the title to all the said property, both in Arkansas and Tennessee, at the time the said two deeds were executed and delivered, was in the plaintiff in this cross-bill in fee as the sale devisee of Ira M. Hill, deceased, and such title passed by the said deeds re- spectively to the property embraced in them, to the said Hill Shoe Company, which thereby became the owner thereof, and entered into the possession thereof, under and in accordance with the terms of the said deeds, except the property at the Northeast corner of Court and Third Streets, .Memphis, Ten- nessee, which, as will hereafter be stated, was retained and has since been retained by the plaintiff in the cross-bill, under and in pursuance of the terms of the contract aforesaid. In order to carry out its part of the said arrangement and agreement aforesaid, more fully stated in her answer hereinbefore re- ferred to, and which is here again referred to for particularly and certainty with respect tO' the matters now to be stated, the plaintiff herein states and shows that on said January ist, 1890, the defendant, the Hill Shoe Company made, executed and delivered its deed and contract in writing, of which Ex- hibit No. 3 to the bill of Colburn, Fuller & Company vs. The Hill Shoe Company purports to be a copy, and the original of which will be produced on the hearing of this cause for the purposes thereof, and to which reference is now here made BILLS NOT ORIGINAL. 471 for particularity and certainty. In and by the said deed and contract it was recited that the said Hill Shoe Company ac- knowledged the receipt from the plaintiff herein of the deeds hereinbefore stated, to wit, those of which Exhibits " F " and " G " to the answer aforesaid of the plaintiff herein, Mary T. Hill, are copies, giving, in connection with such recitals a description of the lands aforesaid, conveyed by the said deeds respectively. The said deed or contract then declared that in consideration of the said deeds, and the property conveyed the Hill Shoe Company thereby, which said deeds the Hill Shoe Company thereby accepted, and in pursuance of, and for the purpose of carrying out the contracts and agreements made by and between the firm of Hill & Sons, composed of Lewis S. Hill and Wm. V. Hill, of Memphis, of the one part, and the Hill Shoe Company of the other, made on December 24th, 1889, as more fully appeared by reference to the said con- tracts and agreements, the said Hill Shoe Company did there- by promise and agree to and with Mrs. Hary T. Hill, the plaintiff herein, and bind itself as follows : First. That it would at the end of each month, beginning with the then month of January, 1890, pay to the plaintiff herein, for and during her natural life, the sum of $400.00 in money for each month, which sum should be taken and accepted by her in lieu of dividends on any stock, she then held, or might hold in the Hill Shoe Company during such time. Second. That the said Hill Shoe Company thereby granted, bargained, sold and conveyed untO' Mrs. Mary T. Hill, the plaintiff herein, the right to occupy and use and have the ben- efit of the property at the Northeast corner • of Court and Third streets, by 148 1-2 feet on the East side of Third street, being one of the pieces of property theretofore con- veyed by the said Mary T. Hill to the Hill Shoe Company, as before stated in the said deed and contract, and the build- ings and improvements thereon, and rights and appurtenances thereto belonging, for and during her natural life, as and for 472 SUITS IN EQUITY. a homestead, free and discharged from any rent whatever, and discharged from all taxes, and other charges and expenses, which taxes and other charges and expenses, the said Hill Shoe Company thereby bound and obligated itself to pay and dis- charge during the said time. Third. That the said Hill Shoe Company thereby agreed and obligated itself to pay any and all debts and liabilities whatsoever owing by the said Ira M. Hill, deceased, at the time of his death,, or owing by the said Mary T. Hill, plain- tiff herein, as executrix of the last will and testament, not then already paid, or in some way discharged, and to indem- nify and save harmless the said Mrs. Mary T. Hill, the plain- tiff herein, and the estate of the said Ira M. Hill, deceased, from and against all liabilities and debts. And the said deed and contract further declared that for the purpose of securing the performance of each and all the stipulations and provisions of the said contract, to wit, the payment of $400.00 per month, stipulated in the first paragraph of said deed and contract, and the occupation and use of the property at the northeast corner of Court and Third streets, and the payment of the taxes and charges, and other expenses, provided for in the second paragraph, and the payment of all the debts and liabilities owing by the said Ira M. Hill and the plaintiff here as his executrix, not then already paid or in some way dis- charged, the said Hill Shoe Company thereby gave, granted, bargained and agreed to a lien upon the said property, so situated at the northeast corner of Court and Third streets, hereinbefore described in the deed made by Mrs. Mary T. Hill, the plaintiff herein, to the Hill Shoe Company, before referred to, and that such property should be charged and bound for the performance in every particular of the said contract, and that should the said Hill Shoe Company at any time fail to perform and fulfil, according to the true intent and meaning, each and all the stipulations of the said con- tract, then Mrs. Mary T. Hill, the plaintiff here, might en- BILLS NOT ORIGINAL. 473 force such lien against such property, and have the same sold and the proceeds applied ( i ) to- pay her any sums due or that might become due by reason of the breach by the Hill Shoe Company of the said contract, or of any of its provi- sions; and (2) that in case of a proceeding to enforce and foreclose any such lien upon the said property, the said Hill Shoe Company thereby relinquished and released and waived any and all right or equity of redemption which it had or might have in or to the said property. The said deed and contract then declared that the indemnity therein provided as to the debts of Ira M. Hill at the time of his death, or the said Mrs. Mary T. Hill, the plaintiff herein, as his executrix, extended not only to the individual debts of the said Ira M. Hill, but also to any debts he might be liable for or might have owed as a member of the firm of Hill & Sons, or any other firm of which he might have been a member. And, finally, the said deed and contract that it was distinctly un- derstood and agreed that the $400.00 per month to be paid Mrs. Mary T. Hill, the plaintiff herein, at the end of each month during her life, and also her right to use and occupy and have the benefit of the property before described, at the northeast corner of Court and Third streets, Memphis, Ten- nessee, ended and terminated at the death of Mrs. Hill, the plaintiff herein, and that thereafter her heirs or distributee, or those who should represent her, should have no right to such payments, or to the use or occupation of the said propr erty. The: plaintiff further states and shows that immedi- ately upon the execution of the said instruments before stated parties thereto treated the same as in full force and effect, and conformed to the requirements thereof. The plaintiff herein remained in possession of the said premises at the northeast corner of Court and Third streets, before described, and the said Hill Shoe Company paid the taxes which had accrued thereon, and the repairs required, and for insurance upon the improvements thereon, and took the title tmder the 474 SUITS IN EQUITY. said deeds so made it by the plaintiff herein, and assumed the possession and control of the said other property as the abso- lute owner thereof, and thereafter collected and received the rents. The said Hill Shoe Company also, beginning with the month of January, 1890, and continuing down to the month of May, 1 89 1, and including that month, paid the plaintiff herein the sum of $400 monthly, under and in pursuance of the deed and contract herein last stated. But no payment whatever has been made the plaintiff here on account of the said $400.00 per month, so accruing and belonging to her, and secured to her under and by the said contract, since the said payment so made for the month of May, 1891. And the plaintiff herein is entitled, and the said Hill Shoe Company and those who have succeeded to its rights and obligations, are indebted to her in the sum of $400.00 for each month since the month of May, 1891, under and in accordance with the terms of the said contract, together with interest on each sum of $400.00 from the end of the month in which it ma- tured until the same is paid. The said defendant, the Hill Shoe Company, conveyed all the property conveyed it by the plaintiff herein, as before stated, by the two deeds before re- ferred to in and by its assignment, a copy of which is made Exhibit " No. i " to the bill of Colburn, Fuller & Co. and others herein, and the original of which will be produced on the hearing, to Albert G. Mitchell, the assignee in the said deed of assignment, all as will more fully appear thereby. And the said Albert G. Mitchell, as such assignee, and the several beneficiaries secured by the said deed of assignment, as more fully appears thereby, each and all accepted the said property so conveyed by the plaintiff herein as aforesaid, and the same has always been treated as assets under the said deed of assignment for the purposes thereof. The property, being the whole of lot No. 227 and part of lot No. 226, at the Intersection of Second alley with the street on the north side of Court square, and having a front of 47 feet 3 inches, more BILLS NOT ORIGINAL. 475 or less, on the north side of North Court street, and extend- ing back 74 feet and 3 inches, yielded a considerable amount of rent, after the said deed of assignment was made and the same was received by the said Albert G. Mitchell, as assignee, and went into the assets in his hands under the said deed of assignment. Afterwards the said Mitchell, as such assignee, sold and conveyed the said lot of B. Lowenstein & Bros., for the sum of $17,000, which sum they paid him therefor. And the said sum also went into the assets to be administered un- der the said deed of assignment. The plaintiff here is not able to state the exact property which was so sold and con- veyed, nor the sums received therefor. She will endeavor to establish the same by the proof on the hearing. The residue of the real estate aforesaid, situated in Arkansas and Ten- nessee, so conveyed by the plaintiff herein to the said Hill Shoe Company, and so conveyed by the said Hill Shoe Com- pany by the said deed of assignment to the said Albert G. Mitchell, as assignee as aforesaid, not so sold and conveyed by the said Albert G. Mitchell as such assignee, as herein- before stated, yet remains to be disposed of under the said deed of assignment, and for the purposes thereof. Neither the said Mitchell nor his successor, the said Edmonds, nor any one, has ever returned to the plaintiff here the said real estate, or any part thereof, nor canceled nor proposed to can- cel the several deeds of conveyance made by her as hereinbe- fore stated conveying the same, nor to return or restore her the property conveyed or any part thereof, nor any considera- tion therefor. On the contrary, all the plaintiffs in the orig- inal bill in the present suit, and all the other creditors of the said Hill Shoe Company, not only accepted the deed of as- signment made by the said Hill' Shoe Company to the said Al- bert G. Mitchell, as assignee, but after the same had been so accepted they accepted the dividends thereunder, declared and paid by the said Albert G. Mitchell as such assignee, and a part of such dividends was made up of and composed of the 476 SUITS IN EQUITY. proceeds of the sale of the real estate hereinbefore set out, conveyed by the plaintiff here to the said Hill Shoe Company, and by the Hill Shoe Company to the said Albert G. Mitchell, as such assignee, and sold and conveyed by him, as has here- inbefore been stated. In this way and out of such dividends the said creditors, respectively, received, the first, about Jan- uary 2Sth, 1892, the sum of 25 per cent, on their respective debts as established by them before the said Albert G. Mitch- ell as such assignee, and afterwards, about January 14th, 1893, they received the further sum of 4 per cent, on their re- spective debts, making all together, received by the sum of about 29 per cent, on their said debts. In the meantime the plaintiff here has received nothing whatver, as already alleged, on account of her claims secured by the deed and contract made with her by the Hill Shoe Company, as hereinbefore stated. She therefore claims and insists that she is entitled to be paid the whole amount due her, beginning on June 30th, 1891, and accruing monthly at the rate of $400.00 per month, from the said date during her natural life, and interest on such installment from the date at which it ought to have been paid, until the time when it in fact is paid. And she claims and insists that such sums of money due her, and to become due her, are liens and charges on the funds provided by the said deed of assignment, made by the Hill Shoe Company to the said Albert G. Mitchell, as assignee, Exhibit " No. i " to the bill herein, which had come to the hands of the said Albert G. Mitchell, or have since come or may corfie to the hands of the said Edmonds, as his successor as such assignee under and in accordance with the said deed of assignment, and that the said sums so due her and to become due her must be paid in full before any other payments can be made to the said other creditors of the Hill Shoe Company, or any of the other creditors secured by the said deed of assignment. And the plaintiff here claims and insists that she is entitled to a lien and charge especially upon the property conveyed BILLS NOT ORIGINAL. 477 by her to the said Hill Shoe Company by the two deeds before stated, Exhibits " F " and " G " to her answer herein, and that by the very terms and provisions of the said two deeds, respectively, her claims for the said sums so due her are to be preferred to all other claims or debts whatsoever, against the said Hill Shoe Company, including the debts due the plaintiffs in the original bill herein, and all the other debts secured by the said deed of assignment to the said Albert G. Mitchell, as assignee, and the proceeds of such property so conv&yed by her to the Hill Shoe Company by the said two deeds, whether already received or hereafter to be received, must in equity be first applied to the payment of the said sums so due her, or to become due her, before any part there- of can be diverted from the payment of such debts, or be ap- plied to the payment of the debts of the said other creditors. And besides, the plaintiff here, as the vendor of the said prop- erty, so embraced in the said two deeds, made Exhibits " F " and " G " in her answer aforesaid, as between her and the Hill Shoe Company, and as between her and the said Albert G. Mitchell, as assignee and trustee of the Hill Shoe Com- pany, and the said Edmonds, as his successor as assignee in the said deed of assignment, and the creditors secured thereby, and whose debts have been established, and who have received dividends, as before stated, is entitled to a preferred lien and claim, and preference under the law on all the said property or its proceeds for the payment of the said sums so due her and to become due her. And as the said property, or por- tions thereof, as already stated, has been sold and disposed of by the said Mitchell, as such assignee, and the proceeds have been distributed among the said other creditors of the Hill Shoe Company, the same being the plaintiffs, and the other defendants in this suit as creditors under the said deed of assignment as hereinbefore alleged, or have been otherwise disposed of under and in accordance with the said deed of assignment, the plaintiff herein is entitled to be substituted 478 SUITS IN EQUITY, and subrogated to a lien and charge upon alt the assets of the Hill Shoe Company, which had come to the hands of the said Mitchell, as such assignee, or which have come or may- come to the hands of the said Edmonds, as his successor as assignee, for disposition and distribution, under the said deed of assignment, in the place and stead of the said real estate so conveyed by the plaintiff here, and so sold and disposed of by the said Mitchell, as such assignee, or the proceeds thereof, and that she is entitled to be paid out of the same before the said other creditors can be paid, or be allowed to receive any- thing further. And the plaintiff here asks the court to make such orders and decrees in this suit as will give her the bene- fit of the lien and preference she is entitled to under the facts hereinbefore stated, or the facts which may be established on the hearing of this cause. If the provisions of the said deed and contract, and the several agreements therein for the bene- fit of the plaintiff here, are to be enforced in her favor accord- ing to the tenor and effect thereof, and if, as the plaintiffs in the original bill herein claim, the said deed and contract were made and executed by the Hill Shoe Company ultra vires, and did not bind it, then the plaintiff here claims and insist and sub- mits to the court that there must be a recission of the entire arrangement and agreements under which the said deed and contract were executed and delivered, including the cancella- tion of the two deeds made by her to the Hill Shoe Com- pany, Exhibits " F " and " G " to her answer aforesaid, and that all the property transferred and conveyed by her to the said Hill Shoe Company, including the capital and assets of the firm of Hill & Sons, belonging to her as executrix and sole devisee of Ira M. Hill, deceased, and which were transferred as aforesaid, and the real estate conveyed by her to the said Hill Shoe Company by the said deeds, must be restored to her and delivered to her, and the rents and profits thereof must be accounted for and paid to her from the dates of the several conveyances until the time of the decree, and BILLS NOT ORIGINAL. 479 that her claim and demand for such real estate, and the rents and profits thereof, constituting a lien and charge on all the remaining assets of the said Hill Shoe Company, remaining to be administered under the provisions of the said deed of assignment. And the plaintiff here prays the court by its de- crees to give the full benefit of the rights and liens so belong- ing to her and to decree them superior to all other claims. The plaintiff here further states and shows that since the death of the said Albert G. Mitchell, the assignee in the said deed of assignment, she has been obliged to pay all the taxes on the property at the northeast corner of Court and Third streets, before described, and for all the repairs and improve- ments on the said property, and the other expenses connected therewith, inckiding state, county and city taxes, and the costs of the insurance of- the improvements, and no part of the said sums has theretofore been repaid her or reimbursed her. She has attached to her answer herein an exhibit marked " H," which shows the expenditures so made by her on ac- count of the said property, and the dates thereof, and the oc- casions therefor, up to about the time of the filing of the said answer, to wit, February 5th, 1897. Since then she has paid taxes to the city of Memphis, for the year 1897, on the said property, amounting to the sum of $265.20 and the re- ceipt therefor is attached to the deposition of Wm. M. Ran- dolph filed in this cause, and she here refers to the same. She has alsO' paid for insurance, and for repairs, in addition to those shown in the said exhibit, but she has not a statement of the amounts ready now. She will prove the same on or before the hearing. She is also under obligation and will be bound to pay the taxes, state and county, on the said prop- erty for the year 1897. While the same have become a charge upon the said property, the amount thereof has not yet been carried out on the Tax Books. The plaintiff here claims and insists that she is entitled to be repaid and reimbursed all the said sums, out of the assets of the said Hill Shoe Company, 480 SUITS IN EQUITY. in the hands of the said Edmonds as assignee and trustee, or to come to his hands under the said deed of assignment, besides interest thereon, and that the same are preferred liens and claims, and are to be paid before any other debts or lia- bilities of the Hill Shoe Company. The plaintiff further states and shows that she incurred debts and liabilities to Wm. M. Randolph & Sons, at attorneys and counsel for services in the administration of the estate of her deceased husband, Ira M. Hill, and for the defense of suits brought against his estate, or her as executrix, and by or against the surviving partners of Hill & Sons, for which she is now indebted to the said firm of Wm. M. Randolph & Sons, and which sum she will be required to pay. The list of the charges for such services, so rendered is shown by Exhibit " i " to her answer, hereinbefore referred to, and to the same she refers for particularity and certainty, and here adopts the same as a part of this her cross-bill. The plaintiff here claims and insists and states and shows that the said debts so contracted, under the contracts and agreements contained in the deed and contract aforesaid, of which Ex- hibit " No. 3 " to the original bill herein is a copy, ought to have been paid out of the assets embraced in the said deed of assignment so made by the said Hill Shoe Company to the said Mitchell, as assignee, and that as the same have not been paid; they ought now to be paid out of such assets, or she ought to be repaid and reimbursed on account of her liability and responsibility therefor. And plaintiff here claims and insists and asks the court to decree the said sums to be so much due her to be paid out of the said assets and to be ap- plied to the payment of the said debts and to discharge and relieve her therefrom. The plaintiff further claims and insists and states and shows that should the assets in the hands of the said Edmonds, as assignee and trustee of the Hill Shoe Co., under the deed of assignment so made by it to the said Mitchell as assignee, re- BILLS NOT ORIGINAL. 481 maining to be administered, turn out to be insufficient to pay her the several sums herein shown to be due and owing her, or to which she is entitled, as herein alleged, then the parties de- fendant to this cross-bill, to wit, the creditors of the Hill Shoe Company, v^o have received the dividends aforesaid, as here- inbefore alleged, are respectively liable to her for their re- spective proportions of the amount necessary to pay her the sum due her, as herein shown, and she prays the court in this connection to make the necessary orders and decrees in that behalf. The plaintiff further states and shows that she and the Hill Shoe Company on behalf of all the creditors, and the parties interested, brought the suit in the Chancery Court of Shelby county, Tennessee, against the heirs at law of Albert G. Mitchell, deceased, after his death, to have the said court appoint an assignee and trustee in the place and stead of the said Albert G. Mitchell, then deceased, under and for the pur- poses of the deed of assignment, made him by the Hill Shoe Company, all as is more fully shown by her answer herein, al- ready referred to and by the copy of the record of the said suit on file as evidence in this cause. To the said answer with respect to the said matters, and the said copy of the said rec- ord, plaintiff now here refers, and adopts the same as a part of this, her cross-bill. She employed Wm. M. Randolph & Sons as lawyers to bring and prosecute the said suit in the manner and for the purposes aforesaid, on her behalf and the behalf of the said Hill Shoe Company, and they accordingly did so, and rendered the necessary services therein, and pro- cured the decree stated in the said answer and shown by the said record. For such services they charged the plaintiff here the sum of $250.00 and such sum she will be required to pay, but has not yet paid. She claims and insists and states and shows that the said indebtedness, so incurred by her, is a just and proper charge against the assets embraced in the said deed of assignment, and which have come or may come to the said 482 SUITS IN EQUITY. Edmonds as assignee to be administered thereunder. The plaintififs in the original bill herein, to wit, Colburn, Fuller & Company, C. W. Varney & Company, Kimball Brothers Shoe Company, H. B. Reed & Company, Geo. M. Coburn & Com- pany, Shammutt National Bank, Stowe, Bills & Hawley, W. D. Brockett & Company, Geo. H. Burt & Company, T. A. Whicher & Company, Mark J. Worthley, John W. Russ, Kim- ball Bros., J. W. Walcott & Company, and Henry C. Mulli- gan, all of whom are citizens and residents of the state of Massachusetts, except the Shammutt National Bank, which is a national bank created under the Act of Congress in that be- half and located and doing business in the said state of Massa- chusetts, and all the petitioning creditors who have filed their petitions and claims h'erein, and become parties to this suit, to wit. Potter, White & Bailey, F. Brigham & Company, Davis Shoe Company, Hopkinton National Bank, First Na- tional Bank of Rockland, National Bank of the, Republic, Waltham National Bank, Security Bank of Lynn, Northern National Bank of Boston, H. C. Thacher & Company, South- bridge National Bank, Blackstone Natiotial Bank, Hamilton National Bank, Jas. H. Durgan & Son, Columbia National Bank, Staje National Bank of Boston, National Bank of Re- demption, National Revere Bank of Boston, C. M. Bailey and Stedman, Steer & Wheeler, each and all of whom are citi- zens of the state of Massachusetts, or corporations created by the laws thereof and reside therein, or are corporations created under the Act of Congress in that behalf, authorizing national banks, and all of which are located and do business in the said state of Massachusetts, and all the other creditors of the Hill Shoe Company who have established their claims against it, and received dividends from the said Albert G. Mitchell, as assignee, and who' have or may make themselves parties to this suit by petition and claim, or otherwise, and the defendant C. W. Edmonds, as the successor of the said Albert G. Mitchell, as assignee of the Hill Shoe Company and at BILLS NOT ORIGINAL. 483 present assignee of the said Hill Shoe Company, and who is a citizen of the state of Tennessee, residing therein, are each and all made defendants to this cross-bill. And process is prayed against each of them requiring them to answer to same, but not under oath, as their oaths to their answers are hereby waived. And, inasmuch as all the said defendants except the said C. W. Edmonds, are non-residents of the state of Tennessee, and beyond the jurisdiction of the court here for the service of the ordinary process of subpoena, the plaintiff prays that service upon the defendant, C. W. Edmonds, the assignee and trustee aforesaid of the Hill Shoe Company, and the repre- sentative of all the said defendants with respect to their sev- eral debts, and the assets of the Hill Shoe Company remaining undisposed of, so far as they are to be applied to their pay- ment, be ordered and decreed to be good and sufficient service of the process of subpoena upon all the other parties defendant to this cross-bill, and that they be required to appear and make defense thereto as if process had been personally duly served on them respectively. Or, if such substituted service cannot be ordered and decreed, as is just prayed, then the plaintiff prays that the said other defendants to this cross-bill, be brought in by publication and notice, under the Act of Con- gress in that behalf, and be required to answer this cross-bill, as is above prayed. The plaintiff prays that on the final hear- ing she may have a decree for all the moneys due her, and to become due her, as appears by the facts hereinbefore stated, including interest thereon, and that the proper accounts may be taken to ascertain and fix the same. She also prays that the deed and contract, a copy of which is made Exhibit " No. 3," to the original bill herein, and the original of which will be produced on or before the hearing for the purposes of this suit may be foreclosed, and that she may have a sale of the prop- erty embraced therein, and that the proceeds thereof may be applied to pay what may be decreed to be due her. She also 484 SUITS IN EQUITY. prays that decrees may be rendered giving her the liens and preferences out of the assets of the Hill Shoe Company re- maining to be administered hereinbefore claimed, and prayed to be enforced. She also prays decrees against the said de- fenda:nts respectively for the amounts they may be found to owe her on account of sums received by them respectively for dividends from the said Albert G. Mitchell, as assignee, to which she is justly and equitably entitled. She also prays for all the relief hereinbefore more particularly asked for, and she prays for all other just proper and necessary relief. X. & X., Solicitors for Cross-Plaintiff. (i) Taken from the record in Colburn, Fuller & Co. vs. Hill, loi Fed. Rep. soo, 41 C. C. A. 467. See note to No. 329. No. 331. Cross-Bill Setting up Interest in Real Estate Fraudulently Conveyed. To the Honorable, the Judges of the Circuit Court of the United States in and for the Southern District of Ohio, Eastern Division: Your respondent, the Pomeroy National Bank of Pom- eroy, Ohio, a corporation duly organized and existing under the national banking laws of the United States, having its ofifice and place of business at Pomeroy, in the state of Ohio, one of the defendants herein, respectively represents to your honors, that heretofore, to wit, on the day of , A. D. 1895, the complainant herein, the Thompson National Bank, of Putnam, Connecticut, filed in this court its bill in equity against your respondent, and John W. Corwine, Mary W. Lee, William B. Lee, James D. Corwine, Eliza Corwine, John W. Barger, Keziah D. Barger, Rachel M. Foster, Jane R. Fos- ter, Oswell C. Phillips, James M. Thomas, James W. Delay and Daniel Will, Elijah Rockhold, and Joseph P. Brown, BILLS NOT ORIGINAL. 485 partners doing business as Rockhold, Brown & Company; Peter B. Hays and George D. Cole, partners as Hays, Jones & Company; the Ross County National Bank of Chillicothe, Ohio, a corporation ; the Pomeroy National Bank of Pomeroy, Ohio, a corporation; the Fourth National Bank of Cadiz, Ohio, a corporation; and the First National Bank of Athens, Ohio, a corporation, alleging in substance the recovery of a judgment by it on or about the 21st day of November, 1894, at the September term, A. D. 1894, in and of the Common Pleas Court of Ross county, Ohio, against the said John W. Corwine, a defendant herein, in the sum of $5,044.00 debt, with interest thereon from the said 21st .day of November, A. D. 1894, at the rate of 8 per cent, per annum, and $3.49 costs of suit and increase costs incurred in by endeavoring to collect said judgment and the interest accruing thereon and costs of suit. Said bill further avers that on the 23rd day of November, A. D. 1894, executions were issued out of and from said Common Pleas Court of Ross county, Ohio, directed respect- ively to the sheriffs of Ross county and Pike county, Ohio, by which said writs, the said sheriffs were commanded that for want of the, goods and chattels and for thereof then of the lands and tenements of the said John W. Corwine, in the re- spective bailiwicks of the said sheriffs, the said sheriffs should cause to be made, the said sum of five thousand and forty-four dollars ($5,044.00) debt with interest thereon from the 21st day of November, A. D. 1894, at the rate of 8 per cent, per annum, costs of suit, and increase costs. The said bill further alleges that the said writ of executions, directed to the sheriff of Pike county, Ohio, was received by him on the 24th day of November, 1894, at 7 :30 o'clock a. m., and for want of goods and chattels whereon to levy, the said writ was, by the said sheriff, duly levied, on the 24th day of November, A. D. 1894, at 7:30 o'clock a. m., upon the equal, undivided 1-4 part of the first, second, third, fourth, fifth, 486 SUITS IN EQUITY. sixth, seventh and eighth tracts of land fully set forth and described in the bill herein, and also upon the dower estate of the said John W. Corwine, as surviving husband of the said Margaret Corwine, deceased, in the equal, undivided 1-4 part of the real estate above mentioned and in said bill described, owned by the said Margaret Corwine, at her decease, and duly returned said writ, and that said writ of execution issued to the sheriff of Ross county, Ohio, was received by him on the 23rd day of November, 1894, at 10 o'clock a. m., and for want of goods and chattels whereon to levy, the same was, by said sheriff, on the 23rd day of November, A. D. 1894, at 4 :30 o'clock p. m., duly levied on the equal, undivided 1-3 part of the ninth and tenth tracts described in the bill herein, and said writ was duly returned. Said bill further alleges that on or about the loth day of November, certain pretended paper writings, purporting to be and which, in form were deeds of conveyance from thje said John W. Corwine, and purporting to convey to the defendant, Mary W. Lee, the seventh and eighth tracts, and to the de- fendant, James D. Corwine, the first and fourth tracts, and to the defendant, Keziah D. Barger, the fifth and sixth tracts, and to the defendant, Rachel M. Foster, the second and third tracts, as described in said bill, were duly transferred and filed for record in the office of and with the recorder of Pike county, Ohio. The said bill further alleges that each of the said alleged conveyances bears date and purports to have been made, ex- ecuted and delivered on the 12th day of March, 1894. Said bill further alleges that on the said lOth day of No- vember, 1894, a certain paper writing, purporting to be, and in form, a deed from the said John W. Corwine to the defend- ant, John W. Barger, for the tenth tract, as described in said bill, was duly transferred and filed for record in the office of and with the recorder of Ross county, Ohio, and that said pretended deed of conveyance bears date and purports hav- BILLS NOT ORIGINAL. 487 ing been made, executed and delivered on the 12th day of May, 1894. ■ Said bill further alleges that on the loth day of Novem- ber, A. D. 1894, a certain paper writing purporting to be, and in form, a deed from the said John W. Corwine, to the defend- ant, Mary W. Lee, conveying to her the ninth tract, as de- scribed in said bill, was duly transferred and filed for record in the office and with the county recorder of Ross county, Ohio, and that the said pretended deed bears date and purports to have been made, executed and delivered on the 12th day of March, 1894. Said 'bill further alleges that on the said lOth day of No- vember, 1894, a certain paper writing, purporting to be, and in form, a mortgage from the defendants, John W. Barger and Keziah Barger, his wife, to the defendants, Peter B. Hays and George D. Cole, partners as Hays, Jones & Company, for the sum of ten thousand five hundred and thirty-three and ten one- hundredths dollars ($10,533.10) on the tenth tract, as de- scribed in said bill, was filed for record in the office and with the county recorder of Ross county, Ohio. And said bill further alleges that each and every of said alleged conveyances and said pretended mortgage were not real, but were mere devices for the purpose and made and received with the intention of placing the property of the said John W. Corwine beyond the reach of complainant and his other creditors, and for the purpose of hindering, delaying and defrauding complainant arid the other creditors of the said John W. Corwine, in the collection of their claims, and that the said conveyances and said mortgage were, each and every of them, without any consideration, valuable or ade- quate, and were made and accepted in consummation of a combination and conspiracy with the said John W. Corwine with the intent to delay and defraud complainant and the other creditors of the said John W. Corwine, in the collection of their claims. 488 SUITS IN EQUITY. Said bill further alleged, that each and every of the said pretended conveyances, with the exception of said mortgage, were not made, executed and delivered at the times by their respective dates they purport to have been made, executed and delivered, but were in fact made, executed and delivered at or about the dates they were severally transferred and filed for record as aforesaid, or that, if made, executed and delivered at the times by their respective dates, they purport to have been made then that were withheld from transfer and record, with the intent and for the purpose aforesaid. The bill further alleges that on or about the day of , A. D. 1894, one Margaret Corwine, wife of the said John W. Corwine, died, testate, and seized of an estate in fee simple in the equal, undivided 1-4 part of the first, second, third, fourth, fifth, sixth, seventh and eighth tracts, described in said bill, leaving her surviving her husband, the defendant, John W. Corwine, and that, subsequent to her decease, a paper writing, purporting to be her last will and testament, was duly admitted to probate and recorded in the Probate Court of Pike county, Ohio, by the terms of which the entire interest and estate of the said Margaret Corwine, testatrix, in said premises, including the dower estate of the said John W. Cor- wine, as surviving husband of the said Margaret Corwine, de- ceased, was devised to James D. Corwine, Mary W. Lee, Ke- ziah D. Barger and Rachel M. Foster, defendants herein, and that nothing was by the terms of the said will, given, devised or bequeathed to the said John W. Corwine, in lieu of his dower estate in said prfemisies, and that on or about the day of , A. D. 1894, the said John W. Corwine, did without any consideration therefor, whatever, and with intent and purpose to cheat, hinder, delay, and defraud the com- plainant and all of his other creditors, and of placing his prop- erty beyond their reach, attempt to and, in form, did accept under said will, and thereby attempted to divest himself of and release his said dower estate in said premises, with the BILLS NOT ORIGINAL. 489 ' intention and purpose then and thereby to hinder, delay and defraud complainant and his other creditors in the collection of their claims. The prayer of said bill is, in substance, that each and every of said pretended conveyances and said pre- tended mortgage and said pretended release of dower, be, each and every of them, set aside and declared null and void. That the said John W. Corwine, John W. Barger, Mary W. Lee, William B. Lee, Rachel M. Foster, James D. Corwine, Eliza Corwine, Peter B. Hays, and George D. Cole, and Ke- ziah D. Barger, and each of them be restrained and enjoined from selling, transferring, encumbering or disposing in any way or manner of the said property, mentioned and described in said deed of conveyance and said pretended mortgage ; that said premises be sold for the satisfaction of the complainant's said judgment with interest and costs as alleged in said bill, and for such other and further relief as said complainant in equity might be entitled to. Your respondent further shows that at or about the time of the filing of the said bill, the said defendant, John W. Corwine, died, testate, in Pike county, Ohio, and that the last will and testament of said John W. Corwine, deceased, has not been filed for probate, and the names of devisees and lega- tees, and the executor or executors "of said testator and the terms and provisions of said last will and testament are un- known to your respondent, and cannot with reasonable dili- gence be ascertained, and are therefore not set out herein, and that the said defendants, Keziah D. Barger, Mary W. Lee, Rachel M. Foster and James D. Corwine, are all the heirs at law of the said John W. Corwine. This respondent, the Pomeroy National Bank of Pomeroy, Ohio, respectfully represents to your honors, that it is a cor- poration duly organized and existing under the national bank- ing laws of the United States, having its office and place of business at Pomeroy, state of Ohio, and a citizen of said state, brings this cross-bill against John W. Corwine, Mary W. Lee, .49° SUITS IN EQUITY. William B. Lee, James D. Corwine, Eliza Corwine, John W. Barger, Keziah D. Barger, Rachel M. Foster, Jane R. Foster, Oswell C. Phillips. That James M. Thomas, James W. Delay and Daniel Will, Elijah Rockhold and Joseph P. Brown, partners doing busi- ness under the firm name and style of Rockhold, Brown & Company ; Peter B. Hays and George D. Cole, partners doing business under the firm name and style of Hays, Jones & Com- pany, each and every one of whom are citizens of the state of Ohio, and inhabitants of the Southern District of Ohio, East- ern Division. And the Vinton County National Bank, of McArthur, Ohio, a corporation duly organized under the national banking laws of the United States, and having its office and place of busi- ness at McArthur, in said state; the Ross County National Bank, a corporation duly organized under the national bank- ing laws of the United States, and having its office and. place of business at Chillicothe, Ohio; the First National Bank of Athens, a corporation, as expressed, and the Fourth National Bank of Cadiz, Ohio, a corporation duly organized and exist- ing under the national banking laws of the United States and having its office and place of business at Cadiz, Ohio, each and every one of which are citizens of the state of Ohio, and inhabitants of the Southern District of Ohio, Eastern Divi- sion, and the First National Bank of Athens, Ohio, a resident of said division of Ohio, and the said complainant, the said Thompson National Bank of Putnam, Connecticut, and this respondent says that at the October term, in the year of our Lord one thousand eight hundred and ninety-four, to wit, on the 1 2th day of November of that year, by the consideration of the Court of Common Pleas within and for the county of Athens and state of Ohio, this respondent recovered a judg- ment against the said John W. Corwine, of Athens, for the sum of five thousand and forty- four 44-100 dollars ($5,044.44) debt^ with continuing interest at 8 per cent, and BILLS NOT ORIGINAL. 491 costs of suit taxed at $5.00, and in and about endeavoring to collect said judgment your respondent has incurred $ in- creased costs. As by the record thereof remaining in the Court of Com- mon Pleas of said Athens county, Ohio, more fully appears, and said judgment is still in full force, unreversed and wholly unpaid and unsatisfied, and there is now actually and equitably due to this respondent, the said Pomeroy National Bank of Pomeroy, Ohio, a corporation as aforesaid, upon the said judgment the said sum of five thousand and forty-four 44-100 dollars ($5,044.44), with continuing interest at 8 per cent, from November 12, 1894, per annum, and said costs of suit, $5.00, apd increased costs made upon said judgment as afore- said amounting to the sum of $ , and that as this respond- ent is informed and believes, the said John W. Corwine has not any claim or demand, legal or equitable, against it, by way of set-off or otherwise. This respondent, on the 12th day of November, 1894, for the purpose of obtaining satisfaction of said judgment, costs and interests, caused one writ of execution to be issued, di- rected to the sheriff of the county of Pike, in the state of Ohio, and another to the sheriff of said Ross county, Ohio, by which writs aforesaid the said sheriffs were commanded that of the goods and chattels and for the want thereof then of the lands and tenements of the said John W. Corwine, in the respective bailiwicks of the said sheriffs, the said sheriffs should cause to be made the sum of $5,044.44 for the debt aforesaid, with interest thereon from the date of said judgment at the rate of 8 per cent, per annum, and the costs and charges of this re- spondent in that behalf; also the costs of increased and accru- ing costs, and that they should have that money before said Court of Common Pleas within sixty days (60) thereafter to render to this respondent for its debts and costs aforesaid, and that they should have there also said writs. And afterwards on the same day the said writs were delivered, respectively, 492 SUITS IN EQUITY. to said sheriffs, to be by them executed in due form of law. This respondent says that afterwards, to wit, on the loth day of January, A. D. 1895, the said sheriff of Pike county, state of Ohio, returned the said writ to him directed, and from his return indorsed thereon and attached thereto it appears that pursuant to the command of said writ the said sheriff did, on the 12th day of November, 1894, at i :io o'clock p. m., for the want of goods and chattels whereon to levy, levy said writ upon the same real estate of the said John W. Cor- wine, set up in the plaintiff's bill of complaint as therein de- scribed, and said description by reference is made a part of this cross-bill the same as if again fully re-written herein. And also at the same time and place said sheriff levied said writ on the dower estate of the said John W. Corwine, as surviving husband of Margaret Corwine, deceased, in the equal undivided one-fourth part of the said real estate hereto- fore described. This respondent further shows that afterwards, to wit, on the 5th day of January, A. D. 1895, the said sheriff of Ross county, state of Ohio, returned the said writ to him directed, and from his return endorsed thereon and attached thereto, it appears that pursuant to the command of said writ the said sheriff received said writ on the 12th of November, 1894, at II o'clock a. m., and did, on the 14th day of November, 1894, at 2 o'clock p. m., for want of goods and chattels whereon to levy, levy said writ upon the equal undivided one-third part of the same real estate described in the plaintiff's bill of com- plaint as situate in Ross county, Ohio, which description by reference is made a part of this cross-bill the same as if fully re-written herein. This respondent further shows, upon information and lief, that before the time of receiving of said judgment as aforesaid, but subsequent to the incurring by the said John W. Corwine, of the indebtedness for which said judgment was rendered, to wit, on the loth day of November, 1894, certain BILLS NOT ORIGINAL. 493 paper writings, each bearing date March 12, 1894, were duly transferred by the auditor of Pike county, Ohio, wherein the premises next hereinafter mentioned and described, said paper writings purport to be, and are in form, conveyances purport- ing, respectively, to convey to the defendant, Mary W. Lee, who is intermarried and the wife of the defendant, William H. Lee, in the sevemth and eighth tracts of land in the said plaintiff's bill set forth and described for a pretended consid- eration of $5,015.00; and the first and fourth tracts of land in said plaintiff's bill of complaint set forth and described to the said James D. Corwine, who is the husband of the defend- ant, Eliza Corwine, for pretended consideration of $7,500.00, and the fifth and sixth tracts of land in said plaintiff's bill of complaint set forth and described to the defendant, Keziah D. Barger, who is intermarried with and is the wife of the defendant, John W. Barger ; and the second and third tracts of land in said plaintiff's said bill of complaint set forth and described to the defendant, Rachel M. Foster, who is inter- married with and is the wife of the defendant, James R. Foster, for the pretended consideration of seventy-five hun- dred dollars. And this respondent further shows that on the lOth aay of November, 1894, a paper writing^ purporting to be, and in form of, a deed of conveyance was transferred by the county auditor of Pike county, Ohio, and on said date said paper writing was lodged in the office and with the county recorder of Ross county, Ohio, wherein the premises next hereinafter mentioned was situate. Said paper writing bears the date May 12, 1894, and purports to convey to the defendant, John Barger, who was the husband of the defendant, Keziah D. Barger, the premises described as the tenth tract, in the plain- tiff's bill of complaint, for the pretended consideration of $9,000.00; and on the 12th day of November, 1894, a pre- tended deed, bearing date March 12^ 1894, from said John W. Corwine to the defendant, Mary W. Lee, was duly trans- 494 SUITS IN EQUITY. f erred by the county auditor of Ross county, Ohio, and on the same day lodged in the office of and with the county recorder of Ross county, Ohio, wherein the premises described, as the ninth tract of land in the plaintiff's bill of complaint were, pretended to be conveyed to the said defendant, Mary W. Lee, for the pretended consideration of $3,000.00, and this respondent is informed and believes, and therefore al- leges and so charges the fact to be, that the said pretended conveyances were not real, but were mere devices for the pur- pose and made with the intention of placing the property beyond the reach of this respondent and the other creditors of the said John W. Corwine, and with the intent and purpose common to both the said grantor and said grantee to hinder, delay and defraud this respondent and the other creditors of the said John W. Corwine in the collection of their claims; that no consideration, either adequate or valuable, was paid for said conveyances, and each and every one of them were made without consideration and accepted and received by the respective grantees for the purpose and with the intent afore- said, and that the premises hereinbefore set out and described are now held by said several grantees either in trust for the said John W. Corwine and for his use and benefit and for the purpose of preventing the seizing of the same in execution under the judgments of this respondent as aforesaid, as a gift from the said John W. Corwine, for the purpose and with the intent as aforesaid. And this respondent is informed and believes, and there- fore alleges the fact to be, that the said pretended conveyances were not made, executed, acknowledged and delivered at the time they appear by their respective dates to have been ex- ecuted, acknowledged and delivered on or about the dates when they were respectively transferred and recorded as afore- said, and antedated as aforesaid and received and accepted by the said several grantees from the said John W. Corwine in consummation of the combination and conspiracy of said BILLS NOT ORIGINAL. 495 grantees, and each of them, with the said John W. Corwine with the intent to hinder, delay and defraud this respondent and the other creditors of the said John W. Corwine in the collection of their claims, or if, as said defendant grantees and grantors allege and pretend, said conveyances were executed, acknowledged and delivered at the several times they purport by the respective dates to have been acknowledged, executed and delivered, then the respondent alleges that the making of said conveyances secretly and withholding them from trans- fer and record, as aforesaid, were each and all fraudulently done and for the purpose and with the intent to aid said Cor- wine in obtaining credit and increasing indebtedness to this respondent and others. And this respondent further shows that on or about the day of , A. D. 1894, Margaret Corwine, the wife of the said John W. Corwine, died intestate and seized of the estate in fee simple in equal undivided one-fourth part of the first, second, third, fourth, fifth, sixth, seventh and eighth tracts set out and described in the plaintiff's bill of complaint, and the equal undivided one-fourth part of the tract herein- before mentioned; that by the conditions of the last will and testament of the said Margaret Corwine, deceased, it was, sub- sequent to her decease, admitted to probate and recorded in the Probate Court of Pike county, Ohio, the entire interest and estate of the said Margaret Corwine, testatrix, in said premises, including the dower estate of the said John W. Cor- wine, as surviving husband of the said Margaret Corwine, de- ceased, therein was devised away and given to James D. Cor- wine, Mary W. Lee, Keziah D. Barger and Rachel M. Foster, the defendants herein, and nothing was given, devised or be- queathed to the said John W. Corwine, in lieu of his said dower , estate ; and on or about the day of , 1894, the said John W. Corwine, without any consideration therefor whatever, by his paper writing therefor, filed in the Probate Court within and for the county of Pike, in said state of Ohio, 496 SUITS IN EQUITY. admitted to and did in form accept, under said will, and thereby attempted to divest himself of and release his dower estate with the intention and purpose then and thereby to hin- der, delay and defraud this respondent, then a creditor of the said John W. Corwine, and his other creditors in the collec- tion of their claims. And this respondent further shows, upon information and belief, that on or about the loth day of November, 1894, at 1 :30 o'clock p. m., of said day, a paper writing bearing date November 10, 1894, purporting to be a mortgage from the defendant, John W. Barger, and his wife, the defendant, Ke- ziah D. Barger, and the deferidant, Peter B. Hays, and George D. Cole, partners, doing business as Hays, Jones & Company, on the premises described in the plaintiff's bill of complaint as the tenth tract, was lodged and recorded in the oiiBce of and with the county recorder of Ross county, Ohio, and subse- quently by the said recorder of Ross county, Ohio, was duly recorded in Volume 44, pages 102, 103, 104 of the record of mortgages of Ross county, Ohio, and that said mortgage is for a tolerable consideration of $10,533.10, and for no actual consideration whatever, or if any, the same was a pre-existing debt. Said mortgage was executed, acknowledged and deliv- ered by the said John W. Barger and wife, Keziah Barger, and accepted by the said Hays and Cole, with the intent and for the purpose of hindering, delaying and defrauding this respondent and the other creditors of the said John W. Cor- wine in the collection of their claims, and with the full knowl- edge and notice as to the fraudulent conveyances of ,said premises from the said John W. Barger. And this respondent further shows that by the virtue of said judgment and levy on all of the premises, it holds and has a lien on all of the lands in the plaintiff's bill of complaint de- scribed for the payment of its said judgment and costs and interest and increased costs, and has the right in equity to have all of said lands sold to pay the same, and which this respond- BILLS NOT ORIGINAL. 497 ent, by reason of said conveyances and mortgage made for the purpose aforesaid, cannot now obtain by sale on execution, and the said John W. Corwine has no other property or effects of any kind subject to sale on execution to pay said judgment, interest, costs and increased costs as aforesaid. This respondent avers that the complaint and the said de- fendants, James H. Thomas, Oswell C. Phillips, the Vinton County National Bank of McArthur, Ohio, James W. Delay and Daniel Will, the First National Bank of Athens, Ohio, the Fourth National Bank of Cadiz, Ohio, and Elijah Rock- hold and Joseph P. Brown, partners in business as Rockhold, Brown & Company, each claim to have some interest or estate upon the real estate in the plaintiff's bill of complaint. This respondent avers that the said actings, doings and pretenses of the said defendants in the matter of said fraudu- lent conveyances are contrary to equity and good conscience, and tend to the manifest wrong, injury and oppression of this respondent and the other creditors of the said John W. Cor- wine in the premises, in consideration whereof and inasmuch as your respondent is remediless in the premises at and by the strict rules of common law and can only have in a court of equity where matters of this sort are properly cognizable and relievable, and to the end, therefore, that the said defendants may, if they can show, why this respondent should not have the relief hereby prayed for, and that the defendants making said fraudulent conveyances be required, according to the ut- most and best of their knowledge, remembrance, information and belief, respectfully, to make full, true, direct and perfect answer, but not under oath, the answer under oath being hereby expressly waived to all and singular the matters and things hereinbefore set forth and alleged as fully and particu- larly as if the same were here repeated. And the said defend- ants thereto distinctly interrogated; and that the said John W. Corwine may fully and particularly set forth and ■ discover all property, effects and things in action belonging to him in 498 SUITS IN EQUITY. which he has any interest whatever, with the amounts, quanti- ties and values thereof, respectively, and all trusts whereby any property, effects or things in action are held for his use and benefit, with the kinds, amounts, quantities and values, re- spectively, of such property, effects or things in action so held, and every sale, transfer or assignment, which he has made of any of his property, effects or things in action since the nth day of March, 1894, and the person or persons to whom, and the trusts and conditions upon which every such sale, transfer or assignment has been made, and all facts and circumstances relating to every such sale, transfer or assignment, and par- ticularly the present situation of any and all property, effects or things in action so sold, transferred or assigned, and the kinds and value thereof, and that the said John W. Barger, Keziah D. Barger, Mary W. Lee, William B. Lee, Rachel M. Foster, James R. Foster, James D. Corwine, Eliza Corwine, Peter B. Hays and George D. Cole, may make full and com- plete discovery of all property, effects and things in action held and controlled by them, or either of them, in trust for the use and benefit of the said John W. Corwine, or given to them, or either of them, by the said John W. Corwine, either now or any time since the nth day of March, 1894, and may sever- ally show and set forth the kinds, amounts, quantities, values and present situation of such property, effects or things in ac- tion, and the precise terms and conditions upon which the same are or have been held or controlled by them, with all proofs relating thereto, and may also set forth and discover, according to the best of their knowledge, information and be- lief, any and all property, effects or things in action, belonging to the said John W. Corwine, or in which he has any manner or degree interested, and that the said Peter B. Hays and George D. Cole may fully and particularly set forth and dis- cover the amount and value of money or property, if any, actually lent, paid or delivered for said pretended mortgage of real estate, and how and when such loaning, pa3mient or de- BILLS NOT ORIGINAL. 499 livery was or was to be made, and when such property or money, if any, was loaned, paid or delivered was derived, and the purpose of said pretended mortgages on real estate, and all the facts and circumstances attending the same, and with the pretended release of dower by said John W. Corwine and his said written acceptances under the I'ast will and testament of Margaret Corwine, and said pretended conveyance and said pretended mortgage on real estate and the said deeds and papers evidencing the same may be set aside, annulled and declared void, and the said John W. Barger, Keziah D. Bar- ger, Mary W. Lee, William B. Lee, Rachel M. Foster, James R. Foster, James D. Corwine, Eliza Corwine, Peter B. Hays and George D. Cole, and each of them, may be restrained from selling, transferring, encumbering or in any way or manner disposing of. said property mentioned in such pretended deed of conveyance or said pretended mortgage or note there- by secured, or any part thereof, or any property, effects or things in action, belonging to the said John W. Corwine, may be restrained from encumbering or in any way intermeddling with or confessing judgment or doing any act for the purpose of giving preference to any creditors over this respondent, or from enabling such creditor or creditors from conveying his property, or any part thereof, or from selling or disposing of any of said property or rights therein. And the said John W. Corwine may be required by the de- cree of this honorable court to pay this respondent the amount so due to it for its damages and costs aforesaid, and interest thereon, together with its costs and charges in its behalf, in- cluding any increased costs, and that said fraudulent deeds, transfers and conveyances thereby vacated and set aside, and that this respondent may authorize and proceed by writ of fieri facias upon the judgment aforesaid, and to cause the marshal of such district, by virtue of said writ, to take, seize, advertise and sell the lands described in the plaintiff's bill of complaint, and so levied upon by this respondent as aforesaid SOO SUITS IN EQUITY. at the date aforesaid, or any other property* or effects what- ever of said John W. Corwine, not exempt by law from ex- ecution and sale for the purpose of making the damages and costs recovered as aforesaid with interest thereon, including all costs and increased costs, and that this respondent may have such other and further relief in the premises as equity may require and to your honors shall seem meet. May it please your honors to grant the writ of subpoena in chancery directed to said defendants, commanding them and each of them that they appear before your honors in said dis- trict this bill of complaint, and to grant a writ of injunction in this behalf directed to said defendants, restraining them, and each of them, their agents and attorneys, as hereinbefore prayed for. The Pomeroy National Bank of Pomeroy, Ohio. [Verification.] (i) The foregoing cross bill was taken from the record in Corwine vs. Thompson National Bank, 105 Fed. Rep. 196; 44 C. C. A. 442. SUBPCENAS. 501 SUBPOENAS. No. 332. Subpcena in Chancery. The United States of America, District of , ss. The President of the United States of America to the Marshal of the district of , Greeting : You are hereby commanded to summon C. D., citizen of and resident in the state of — , if he be found in your dis- trict, to be and appear in the circuit court of the United States for the district of aforesaid, at , on the first Monday in next, to answer a certain bill in chan- cery, filed and exhibited in said court, against C. D., by A. B., citizen of and resident in the state of . Hereof you are not to fail, under the penalty of the law thence ensuing. And have you then and there this writ. [Add teste. See No. 56.] MEMORANDUM (l). The said defendant is required to enter his appearance in this suit in the clerk's office of said court on or before the first Monday of , 1894, otherwise the said bill may be taken pro confesso. B. R., Clerk, (i) See 12th Rule in Equity. 502 SUITS IN EQUITY. No. 333. Return of Subpoena by Marshal (i). District of , ss. Received this writ at , at o'clock a. m., on the day of , and served the same by handing a true copy thereof, with the endorsements thereon, to the said C. D. per- sonally [or say, I left a like copy thereof, with the endorse- ment thereon, with an adult person who is a member ( or, resi- dent) of the family of C. D., at the usual place of residence of said C. D.] \_In like manner state service on either defend- ants or witnesses, if any have been served.'] And the other persons named in said writ are " not found " in said district this day of , 190 — . The distance from the court to the place of service most remote therefrom is miles ; and the extra travel necessary to serve the other persons named herein is miles ; and my actual and neces- sary expenses in serving this writ are, by dates and items, as follows : I paid to , for , $ Total expenses $- H. C, U. S. Marshal District of . Per S. H., Deputy. (i) This form of return may be used on any subpcena whether it be served upon a defendant or upon a witness to testify. The manner of serving a subpcena is prescribed by equity rule 13. This rule must be strictly followed or the service will be defective and will be set aside. See Romaine vs. Union Ins. Co., 28 Fed. Rep. 6356 and cases there collated. As to service upon an infant see O'Hara vs. McConnell, 93 U. S. 150; \Voolridge vs. McKenna, 8 Fed. Rep. 670. As to service upon corporations see Shaw vs. Mining Co., 14S U. S. 444; SUBPOENAS. 503 Galveston Ry. Co. vs. Gonzales, 151 U. S. 496; So. Pac. Co. vs. Denton, 146 U. S. 202. As to a corporation created in two states see Williamson vs. Krohn, 66 Fed. Rep. 662. As to service by leaving a copy at the usual place of abode see Phcenix Ins. Co. vs. Wulf, I Fed. Rep. 775; Kibbe vs. Benson, 17 Wall. 624; Hislop vs. Hoppock, No. 6988, Fed. Cas., 5 Ben. 447. As to form of and amending return see eq. rule 15 ; Phoenix Ins. Co. vs. Wulf, I Fed. Rep. 775 ; Dwight vs. Merritt, 4 Fed. Rep. 614 ; U. S. vs. Rose, 14 Fed. Rep. 681. No. 334. Service by Publication. For form of affidavit, motions, order of publication, etc., see Nos. 60 to 69. The form is the same in equity or bankruptcy as at law. No. 335. Subpoena to Testify in Circuit Court. The United States of America. District of , ss. The President of the United States of America to the Marshal of the District of , Greeting : We command you to summon G. S., of , county of , district and state aforesaid, if he be found in your baili- wick, to be and appear before the judges of the Circuit Court of the United States for the Division of the Dis- trict of , aforesaid, at , on the day of , at 10 o'clock a. m., to give evidence on behalf of the plaintiff [or, defendant] in a suit pending in said court, wherein A. B., plaintiff, and C. D., defendant. Hereof fail not ; and of this writ make legal service and due return. Witness, the Hon. Melville W. Fuller, Chief Justice of the l504 SUITS IN EQUITY. United States, this day of , in the year of the independence of the United States of America. Attest: B. R., Clerk Circuit Court of the U. S., District of . No. 336. Subpoena to Testify in District Court. The United States of America. District of , ss. The President of the United States of America to the Marshal of the District of , Greeting : We command you to summon G. S., of , county of , district and state aforesaid, if he be found in your baili- wick, to be and appear before the judges of the Circuit Court of the United States for the District of , aforesaid, at , on the day of , at lo o'clock a. m., to give evidence on behalf of the plaintiff [or, defendant] in a suit pending in said court, v^rherein A. B., plaintiff, and C. D., de- fendant. Hereof fail not ; and of this writ make legal service and due return. Witness, the Hon. W. T., judge of said court, this day of , in the year of the independence of the United States of America. Attest: B. R., Clerk of the District Court of the United States, District of . SUBPOENAS. 505 No. 337. Subpoena duces tecum to Testify in Court. The United States of America. District of , ss. Division. The President of the United States of America to G. B. and S. R., Greeting: We command ^nd strictly enjoin you, and each of you, that laying aside all manner of business and excuses whatsoever, you and each of you be and appear in your proper person be- fore the judges of the Circuit [or, District] Court of the United States for the District of , at , on the day of next, at 10 o'clock a. m., and also that you bring with you and produce at the time and place aforesaid [here state what books or papers the witness is required to bring with hint], then and there to testify, what you and each of you may know, in a certain suit pending in said court, wherein A. B. is plaintiff and C. D. is defendant ; and this you do under the penalty of the law. \^Add teste according to the court issuing the writ. See forms Nos. 55 and 56 :] No. 338. Subpoena duces tecum to Testify before a Master or Exam- iner. The United States of America. District of . ss. Division. The President of the United States of America to G. B., S. R. and L. M., Greeting : We command and strictly enjoin you, and each of you, that laying aside all manner of business and excuses whatsoever, you and each of you be and appear in your proper person be- 506 SUITS IN EQUITY. fore E. M., master in chancery [or, an examiner appointed by the Circuit Court of the United States for the District of , or, as may be} at [here give place of examination, as his ofUce, No. 12 Main street, in the city of ], on the day of next, at 10 o'clock a. m., and also that you bring with you and produce at the time and place aforesaid [here state what books or papers the witness is required to bring with him'], then and there to testify, what you and each of you may know, in a certain action pending in the Circuit [or. District] Court of the United States for the District of , wherein A. B. is plaintiff and C. D. is defendant; and this you do under the penalty of the law. [Add teste according to the court issuing the writ. See forms Nos. 55 and 56 :] DEMURRERS. S07 DEMURRERS. No. 339. Title and Commencement. [^Capiion.l The demurrer of A. B., attorney \or, solicitor] general, or of C. D., Esq., attorney [or, solicitor] general of the state of , or of the mayor and aldermen of the city of K. ; or of F. G., an infant under the age of twenty-one years, by H. I., his guardian, or of M. N. and O., his wife ; or of P., the wife of R. S., who has fully obtained an order of this honorable court for liberty to defend separately from her said husband, or of T., the wife of V. Y., defendants, to the bill of complaint of Z. X., complainant. No. 340. Another Form. [Caption^ The demurrer of C. D., defendant, to the bill of complaint of A. B., the above-named plaintiff. No. 341. Another Form. [Caption.^ The demurrer of John Jones (in the bill by mistake called William Jones), the above-named defendant \or, one of the above-named defendants], to the bill of complaint of A. B., the above-named plaintiff. 508 SUITS IN EQUITY. NO. 342. Another Form. [Caption.^ The joint and several demurrer of A. B. and C. D., the \or, two of the] above-named defendants, to the bill of complaint of A. B., the above-named plaintiff. No. 343. Another Form. ' [Caption.] The joint demurrer of A. B. and C, his wife, the [or, two of the] above-named defendants, to the bill of complaint of A. B., the above-named plaintiff. \_Or, if they have married since she was made a defendant., say-] The joint demurrer of A. B. and C, his wife, lately and in the bill called C. D., spinster [or, widow], to the bill of complaint of A. B., the above-named plaintiff. No. 344. Introduction to a Demurrer to the Whole of the Bill. [Caption.] This defendant [or, these defendants respectively], by pro- testation, not confessing or acknowledging all or any of the matters and things in the said plaintiff's bill to be true, in such manner and form as the same are therein set forth and alleged,* doth [or, do, as the case may be] demur thereto, and for cause of demurrer, showeth [or, show] that, etc. No. 345. The Same Where the Demurrer is to Part of the Bill, or to the Relief. [As in No. 344 to the asterisk] as to so much and such part of the bill as seeks that this defendant [or, these defendants] DEMURRERS. 5^9 may answer and set forth whether, etc.; and whether, etc.; and prays, etc. \if relief be prayed^ doth [or, do] demur, and for cause of demurrer showeth [or, show] (i). (i) A special demurrer should point out, specifically, by paragraph, page, or folio, or other mode of reference, the parts of the bill to which it is intended to apply. Atwill vs. Ferrett, 2 Blatchf , 39; S. P., Chi- cago, St. Louis, etc., R. R. Co. vs. Macomb, 2 Fed. Rep., 18. No. 346. General Words of Conclusion (i) to a Demurrer to the Whole of the Bill. Wherefore this defendant [or, these defendants respectively] demands* [or, demand] the judgment of this honorable court, whether he shall be compelled to make any further or other answer to the said bill, or any of the matters and things therein contained, and prays \or., pray] to be hence dismissed, with his [her, or., their] reasonable costs in this behalf sus- tained. R. Y., of Counsel. (i) A demurrer to -a bill in equity should be certified by counsel to be, in their opinion, well founded in point of law (see No. 134), and supported by the affidavit of the defendant that it is not inter- posed for delay (see No. 350). Secor vs. Singleton, 9 Fed. Rep., 809; 3 McCrary, 230. No. 347. Wherefore, and for divers other errors and imperfections this defendant humbly demands, etc. \_as in No. 346 from the asteriskl. No. 348. Conclusion where the Demurrer is to Part only, or to the Relief. Wherefore, and . for divers other errors and imperfections appearingin the said bill, this defendant [or, these defendants] 5IO SUITS IN EQUITY. humbly prays [or, pray] the judgment f of this honorable court, whether he [she, or, they] shall be compelled to make any answer to such part of the said bill as is so demurred unto as aforesaid. R. Y., of Counsel for Defendant. No. 349. Another Form. And, therefore,'and for other good causes of demurrer in the said bill contained, as to so much of the said complainant's bill as is demurred unto as aforesaid, this defendant [or, these defendants] doth [or, do] demand the judgment, etc. [as in No. 348, from-^}. No. 350. Verification of Demurrer or Plea (i). State of , County of , ss. C. D. makes solemn oath and says that he is the [president, or other officer, as may be, of the above-named corporation], defendant, and that the foregoing demurrer [or, plea] is not interposed for delay [and if plea, that the same is true in point of fact]. C. D. Sworn to and subscribed before me this day of , 1894. J. N., Notary Public in and for County. (i) See 31st Rule in Equity. No. 351. Certificate of Counsel (i). I hereby certify that in my opinion the foregoing demurrer [or, plea] is well founded in point of law. R. Y., of Counsel for Defendant, (i) See 31st Rule.in Equity. DEMURRERS. 5^^ No. 352. Demurrer for Want of Jurisdiction and Equity. [Caption.] Come the defendants, C. D. and the C. D. Company, receiver of the Mutual Life Association of , for the special purpose and no other, until the question herein raised is de- cided of objecting- to the jurisdiction of this court, by protesta- tion, not confessing or acknowledging all or any part of the matters or things in said bill of complaint contained to be true in such manner and form as the same are herein set forth and alleged, demurs to the said bill and for cause of demurrer shows : First. That it appears by the plaintiff's own showing by the said bill that it is not entitled to the relief prayed by said bill against this defendant. Second. That it appears from said bill of complaint of the plaintiff that this court has no jurisdiction .to hear and deter- mine this action; (a) the amount involved in this controversy is $1,994.50, with interest, which amount is not sufficient to give this court jurisdiction of this cause; (fe) this court is denied jurisdiction herein and precluded from a hearing of this action by reason of Section 720 of the Revised Statutes of the United States. Third. That said bill of complaint of the plaintiff is wholly without equity. Wherefore, and for divers other good causes of demurrer appearing on said bill, this defendant 'demurs thereto, and it prays a judgment of this honorable court whether it shall be compelled to make further or any answer to the said bill ; and it humbly prays to be hence dismissed with its reasonable costs in its behalf sustained. Y. & Y., Attorneys for the Defendants. 512 SUITS IN EQUITY. No. 353, Demurrer to Part of Bill only (i). \Title and commencement^ This defendant [cr, these defendants respectively], by pro- testation, not confessing or acknowledging all or any of the matters and things in the said plaintiff's bill "to be true, in such manner and form as the same are therein set forth and alleged, as to so much and to such parts of the said bill as seeks that this defendant may answer and set forth whether, etc.; and whether, etc.; and prays \if relief be prayed], doth demur, and for cause of demurrer showeth that [state causes of demurrer\ Wherefore, and for divers other errors and imperfections appearing in the said bill, the defendant prays the judgment of this honorable court whether he shall be compelled to make any answer to such part of the said bill as is so demurred unto as aforesaid, and prays to be hence dismissed with his reasonable costs in this behalf sustained. Y. & Y., Solicitors for Defendant. R.Y., of Counsel, (i) There must be an affidavit and certificate of counsel. See 31st Rule in Equity. Fot forms of Affidavit and Certificate, see No. 350 and No. 351. No. 354. General Demurrer for Want of Equity (i). [Caption^ The demurrer of C. D., defendant, to the bill of complaint of A. B., plaintiff. This defendant \or, these defendants respectively], by pro- testation, not confessing or acknowledging all or any of the matters and things in the said plaintiff's bill to be true, in such manner and form as the same are therein set forth and alleged, doth \or, do] demur thereto, and for cause of demur- DEMURRERS. 5^3 rer showeth [or, show] that the said plaintiff has not, in and by said bill, made or stated such a cause as doth or ought to entitle him to any such discovery or relief as is thereby sought and prayed for, from or against this defendant [or, these defendants] ; wherefore this defendant [or, these defend- ants] demand the judgment of this honorable court whether he shall be compelled to make any further or other answer to the said bill or any of the matters and things therein contained, and prays to be hence dismissed with his reason- able costs in this behalf sustained. R. Y., Solicitor for Defendant, (i) See note to No. 353. No. 355. Demurrer Omitting Several Grounds. [Capiz'on.] The demurrer of the above-named defendant, C. D., to the bill of complaint of the above-named plaintiff. This defendant, by protestation, not confessing or acknowl- edging all or any of the matters or things in the said bill of complaint contained to be true in such manner and form as the same are herein set forth and alleged, demurs to the said bill. And for causes of demurrer shows, I. That it appears by the plaintiff's own showing by the said bill that he is not entitled to the relief prayed by the bill against this defendant. II. That it appears by the said bill that there are divers other persons who are necessary parties to the said bill, but who are not made parties thereto. And in particular it ap- pears that the said C. D. has been duly adjudicated a bank- rupt, and that S. M. has been duly appointed assignee of his estate, and that it appears by the said bill that said S. M., as assignee, as aforesaid, is a necessary party to the said bill ; but that said S. M. is not made a party thereto. III. That the said bill is exhibited against these defend- ants, and against several other defendants to the said bill, 514 SUITS IN EQUITY. for several and distinct and independent matters and causes which have no relation to each othef, and in which, or, in the greater part of which, this defendant is in no way inter- ested or concerned, and ought not to be implicated. Wherefore, and for divers other good causes of demurrer appearing on the said bill, this defendant demurs thereto^ And he prays the judgment of this honorable court whether he shall be compelled to make any answer to the said bill ; and he humbly prays to be hence dismissed with his reason- able costs in this behalf sustained. R. X., Solicitor and of Counsel for Defendant. See note to No. 353. No. 356. Demurrer and Answer (i). [^Caption]. The joint and several demurrer of C. D. and E. F. to part, and the joint and several answer of the same defendants to the residtce, of the original bill of complaint of A. B. and S. B., plaintiffs. These defendants, to so much of the plaintiffs' bill as prays that they may be decreed to transfer to the said plaintiffs, as the executors of M. L. in the said bill mentioned, the 2i-64th shares of the ship called , in the said bill mentioned, and that the said defendant C. D. may be decreed to transfer to the pl&intiffs the 2i-64th shares of the brig or vessel called , in the said bill mentioned, and to so much of the said bill as prays that an account may be decreed to be taken of all the dealings and transactions between these defendants and the said M. I^., with respect or in relation to the said two vessels, and of all sums of money respectively received and paid by these defendants and the said M. I/., respectively, or by any other person by their or any of their respective order, or for their or any of their use, and that these defendants should be decreed to pay what should be found due thereon, DEMURRTJRS. 5^5 SO far as such dealings and transactions and sums of money, or any or either of them, relate to or concern the said 21- 64th shares of the said vessel called , or the said 21 -64th shares of the said vessel called , and the freights or freight, or any shares or share of the freights or freight, of such vessels or either of them, and to so much of the said bill as prays further or other relief with respect or in relation to the said shares of the said two vessels respectively or the freight thereof respectively. l^Cause of demurrer i\ ' These defendants do demur, and for cause of demurrer show that the said plaintiffs have not made or stated such a case as entitles them in a court of equity to the relief so prayed for, or any part thereof; and these defendants humbly pray the judgment of the court as to such parts of the bill as they have so demurred to as afore- said. [Answer to residue of bill.'] And as to the residue of the said bill, that is to say, all the discovery, and the rest of the relief, by the said bill prayed, these defendants for answer thereto severally say, they admit it to be true that Messrs. G. & S. were, in the month of, etc., engaged in building at Liverpool, on their own account, a certain brig or vessel, and that in the month of , these defendants C. D. and E. F. did carry on business together in partnership as wine mer- chants and general dealers [continue with answer]. (i) See note to No. 3S3- No. 357. General Form of Demurrer, Plea, and Answer (i). [Caption.] The demurrer, plea, and answer of C. D., the above-named defendant [or, one of the above-named defendants] to the bill of complaint [or, amended bill of complaint] of the above-named plaintiflF. (i.) Demurrer. I, the defendant C. D., by protestation, not confessing or acknowledging all or any of the matters 5l6 SUITS IN EQUITY. and things in the said bill contained to be true, in such man- ner and form as the same are therein set forth and alleged, as to so much of the said bill as seeks [state what'], and also as to so much of the said bill as seeks [state what], do demur thereto. And as to the discovery and relief sought by the said bill, save so much thereof as relates to the premises therein men- tioned to be situate at S., in the county of , for cause of demurrer I show that [state what}. And as to so much of the said discovery and relief as relates to the said premises at S., aforesaid, for cause of demurrer I show that [state what]. Wherefore and for divers other good causes of demurrer appearing in the said bill, I pray the judgment of this honor- able court whether I shall be compelled to make any answer to such parts of the said bill as I have hereinbefore demurred to. (2.) Plea. And I, the defendant C. D., not waiving my said several demurrers, but wholly relying thereon, as to so much of the said bill as seeks [state what], and also. as to so much of the said bill as seeks [state what], do plead thereto ; and for plea say that [state what] ; and I do aver that [state what]. All which last-mentioned matters and things I do plead in bar to so much of the said bill as is hereinbefore pleaded to ; and I humbly pray judgment of this honorable court whether I ought to make any further answer to so much of the said bill as is hereinbefore pleaded to. (3.) Answer. And I, the defendant C. D., not waiving my said several demurrers and plea, but wholly relying and insisting thereon, for answer to so much of the said bill as I am advised it is material or necessary for me to make answer unto, say as follows [continue with answer] (3). (i) See Beach's Modern Eq. Prac, Sec. 241. Where a demurrer is interposed the bill is to be taken as true. Tay- lor vs. Bradshaw, 17 Am. Dec, 132. A general demurrer admits all DEMURRERS. 5^7 -well-pleaded allegations of a bill. Smith vs. Allen, 21 Am. Dec, 33. A demurrer is, in a legal sense, an answer to the bill, though not an answer as that term is used in the common language of practice. New Jersey vs. New York, 6 Peters, 323. (2) See note to 353. No. 358. Demurrer for W^ant of a Suggestion that the Evidence of the PlaintifFs Demand is Not in his Power (i). [Title, commencement, and introduction.^ As to so much and such part of the said plaintiff's bill as prays relief, in respect of the bond bearing date , for the sum of twenty thousand- dollars in the said bill, stated to have been made and entered into, for the payment of ten thousand dollars and interest on the day of last, by this defendant, or the money alleged, by the said bill, to be now due to the said plaintiflf from this defendant there- on, this defendant demurs, and for cause of demurrer .shows that the said bond appears by the said bill to have been taken by the said plaintiff, in his own name, and to be now in the possession, custody, or power of the said plaintiff, who therefore has a remedy for his demand at law. Where- fore, etc. l^See No. 347.] (i) See note to No. 353. No. 359. Demurrer to a Bill for Relief Filed by a Person Benefi- cially Entitled where a Right of Action at Law was in a Trustee Suggesting a Refusal by the Trustee to Suffer an Action to be Brought in his Name (i). \_Title, cominencem.ent, and introdtiction.^ As to so much and such part of the said bill as seeks to compel these defendants to pay the sum of five thousand dollars, or to make the said plaintiffs satisfaction for any loss that has happened to the said ship, these defendants 5l8 SUITS IN EQUITY. respectively demur; and for cause of demurrer show that if the policy of the insurance in the said bill mentioned was forfeited, a proper action at law did and would lie to recover the money due thereon, and if the said plaintiffs be entitled to any such relief as aforesaid, as prayed in and by their said bill, they might have a complete and adequate remedy by an action at law, where they ought and would be put to prove their interest in, and the loss of, the said ship. Wherefore, etc. [See No. 347.] See note to No. 353. No. 360. Demurrer for Want of Parties (i). [Title, commencement, and introduction.'] That it appears by the said plaintiff's said bill that S. B., therein named, is a necessary party to the said bill, inasmuch as it is therein stated that C. D., the testator in the said bill named, did in his lifetime, by certain conveyances made to the said S. B., in consideration of dollars, conveyed to him, by way of mortgage, certain estates in the said bill particularly mentioned and described, for the purpose of paying the said testator's debts and legacies; but the said plaintiff has not made the said S. B. a party to the said bill. Wherefore, etc. {See No. 347.] (i) A demurrer to a bill for want of the necessary parties must name the proper parties. Dwight vs. Central Vt. R. Co., 9 Fed Rep. 785; 20 Blatchf. 200. (i) See note to No. 353. No. 361. Demurrer for Multifariousness (1). [Title, commencement, and introduction."] That it appears by the said, bill that the same is exhibited by the said plaintiff against this defendant, and C. D., E. F., DEMURRERS. 5^9 and G. H., as defendants thereto, for several distinct matters and causes, in many whereof, as appears by the said bill, this defendant is in no way interested ; and, by reason of such distinct matters, the said bill is drawn out to a considerable length, and this defendant is compelled to take a copy of the whole thereof; and by joining distinct matters together, which do not depend on each other, the proceedings in the progress of the said suit will be intricate and prolix, and this defendant put to unnecessary charges and expenses in matters which in no way relate to or concern him. Where- fore, etc. [See No. 347.] (i) See Beacli's Modern Eq. Prac., Sec. 262. There is no definite rule as to what constitutes multifariousness in a pleading in chancery. Each case must depend upon its own circumstances, and much must be left to the sound discretion of the court. Gaines vs. Chew, 2 How., 619, 642 ; and note to Banks' ed. S. P., Oliver vs. Piatt, 3 How., 333 (411); aflBrmifig, 3 McLean, 27; McLean w. Lafayette Bank, 3 Mc- Lean, 415. The objection of mv^tifariousness can not be insisted upon by the defendant as a matter of right at the hearing. It must be taken ad- vantage of by the plea, answer, or demurrer. And although the court may take notice of it, at any time, sua sponte, this will not be done at so late a period as the hearing, unless it is essential to the due admin- istration of justice. An appellate court, a fortiori, would not enter- tain it, unless forced to do so by a moral necessity, Oliver vs. Piatt, 3 How., 333 (412); afl5.rming, 3 McLean, 27; Nelson vs.lVXS., 5 How., 127 ; and note to Banks' ed. A bill is subject to demurrer for multifariousness if one of the two complainants has no standing in court, or they set up antagonistic causes of action, or the relief for which they respectively pray in regard to a portion of the property sought to be reached involves totally distinct questions, requiring different evidence, and leading to difierent decrees. Walker vs. Powers, 104, U. S. 245. But it is not multifarious simply because it prays for different modes of relief against one injury (Wells vs. Bridgeport, etc., Co., 79 Am. Dec, 250; Way vs. Bragaw, 84 Am. Dec, 147) ; or where the joinder therein of two distinct matters prevents a needless multiplicity of suits, and neither inconveniences the defendants nor causes them additional expense (Stafford Nat. Bank vs. Sprague, 8 Fed. Rep., 377 ; 19 Blatchf 529) ; or where all the matters in controversy are between the same 520 SUITS IN EQUITY. parties, arise out of ttie same transaction, from breaches of the same instrument, and can be settled in one suit. Pacific R. R. Co. vs. At- lantic & Pacific R. R. Co., 20 Fed. Rep., 277. So, also, a bill which embraces the distinct claims of several parties is not open to the objection of multifariousness if the interests of all are so mingled in a series of complicated transactions that entire jus- tice could not be conveniently obtained in separate and independent suits (Oliver vs. Piatt, 3 How., 333 (411) ; affirming, 3 McLean, 27); as where it joins defendants holding distinct tracts of land under distinct conveyances, if the main ground of defense is common to all of .the defendants. Gaines vs. Mausseaux, i Woods, 118. See, also. Shields vs. Thomas, 18 How., 253 ; Turner vs. American Baptist Missionary Union, 5 McLean, 344. See also note to 353. No. 362. Demurrer to a Bill Brought for Part of a Matter only(i). \_Tiile, commencement., and introduction.] That the said plaintiff, by his said bill, in order to split the cause, and create a multiplicity of suits, seeks only to recover a part of an entire debt, thereby stated to be due to him from this defendant ; and in respect of other parts of the said debt has, as appears by his said bill, fikd two several other bills of complaint in this honorable court against this defendant. Wherefore, etc. \_See No. 347.J (i) See note to No. 353. No. 363. Demurrer to a Bill of Interpleader, Because it Does not Show any Claim of Right in the Defendant (i). \_Title., commencement^ and introduction.] For that the said plaintiff has not in and by his said bill of interpleader shown any claim, or right, title, or interest whatsoever, in this defendant in or to the said estate called A., in the said bill particularly mentioned and described, in re- spect whereof this defendant ought to be compelled to inter- plead with C. D. in the said bill named, and the other de- fendant thereto. Wherefore, etc. ISee No. 347.] (l) See note to No. 3S3. DEMURRERS. S^I No. 364. Demurrer to a Bill of Interpleader, Because the Plaintiff Shows no Right to Compel the Defendants (Whatso- ever Rights they may Claim) to Interplead (i). [^Title, commencement, and introduction.^ That the said plaintiff has not, in and by his said bill, shown any right and title whatsoever to compel this defend- ant, and A. B., the other said defendant to the said bill, to interplead. Wherefore, etc. [^See No. 347. J (i) See note to No. 353. No. 365. Demurrer to a Bill of Interpleader, for Want of the Necessary Affidavit (i), l^Title, commencement, and introduction^ That although the] said plaintiff's said bill is on the face thereof a bill of interpleader, and prays that this defendant and the other defendants thereto may interplead together concerning tlie matters therein mentioned, and may be restrained, by the order and injunction of this honorable court, from proceeding at law against the said plaintiff, touching such matters, yet the said plaintiff has not an- nexed an affidavit to his said bill, that he does not collude concerning such matters, or any of them, with this defendant and the other defendants thereto, or any or either of them, which affidavit ought, as this defendant is advised, according to the rules of this honorable court, to have been made by the said plaintiff, and annexed to the said bill. Wherefore, etc. \See No. 347.J (i) See note to No. 353. 522 SUITS IN EQUITY. No. 366. Demurrer to a Bill Exhibited by an Infant, where no Next Friend is Named (i). \_Title, commencement^ and introduction^ That the said plaintiflF, who appears by the said bill to be an infant under the age of twenty-one years, has exhib- ited his said bill without any person being therein named as his next friend. Wherefore, etc. \See No. 347.] See also Note to No. 353. No. 367. Demurrer to a Bill where the Plaintiff Claimed Under a Will, and it was Apparent on the Face of the Bill that he had no Title (i). \_Title, commencement, and introduction.^ That the said plaintiff has not, as appears by his said bill, made out any title to the relief thereby prayed. Wherefore, etc. \See No. 347. J (i) See note to No. 353. No. 368. Demurrer on the Ground of the Statute of Frauds (1). [Title, commencement, and introduction^ That it appears by the said bill that neither the promise or contract which is alleged by the said bill, and of which the plaintiff by the said bill seeks to have the benefit, nor any memorandum or note thereof, was ever reduced into writing or signed by this defendant \or, these defendants or either or any of them], or any person authorized thereunto, within the meaning of the statute, viz.: section of chapter , of the General Statutes (2) of the State of , for the prevention of frauds and perjuries. (i) See Beach's Modern Eq. Prac, Sec. 260. (2) State the chapter and section relating to frauds and known as the Statute of Frauds. See Note to No. 353. DEMURRERS. $23 No. 369. Demurrer to Bill to Enjoin Erection of Telephone • Line in Municipality (i). [Caption.^ The demurrer of J. J. to the bill exhibited against him by the A. B. Telephone Company, a corporation. This defendant by protestation not confessing nor acknowl- edging all or any part of the matters or things in said bill of complaint therein contained to be true, in manner and form as the same are therein set forth, does demur thereto, and for cause of demurrer shows: First. That said complainant has not, in and by its said bill, stated such a case as does or ought to entitle it to any such relief as is thereby sought or prayed for from or against this defendant. Second. That if the matters and things stated in said bill do give said complainant any cause of complaint against this defendant, still the bill is defective for want of parties, as he says and as appears on the face of said bill, the city of ' is a necessary party to this action in order to a final adjudication of the matters and things complained of herein. Third. That it appears by said bill that same is exhibited against this defendant for several distinct matters and causes in favor of several complainants who have no joint or com- mon interest or concern in the said matters or causes or any of them. Wherefore, this defendant demands the judgment of this honorable court whether he shall be compelled to make any further or other answer to the said bill or any of the matters or things therein contained, and prays to be hence dismissed with his reasonable costs in this behalf sustained. R. Y., Attorney for Defendant. (i) See note to No. 353. 524 SUITS IN EQUITY. No. 370. Demurrer to an Intervening Petition. [Caption.] The demurrer of the above named complainant, the A. B. Trust Company of the city of , as trustee, to the inter- vening petition of K. S., filed . This complainant, by protestation, not confessing or ac- knowledging all or any of the matters and things in the said intervenor's petition to be true in such manner and form as the same are herein set forth and alleged does demur thereto, and for cause of demurrer shows: First. That the said intervenor has not in and by the said petition made or stated any such cause as does or ought to entitle him to any such discovery or relief as is thereby sought and prayed for from or against this complainant. Second. That it appears from said petition of. the said in- tervenor that this court has no jurisdiction to hear and deter- mine the said petition. Third. That said petition of the said intervenor is wholly without equity. Wherefore, etc. [See form No. 347. J No. 371. Demurrer to Supplemental Bill (i). [Capii'on.] The demurrer of C. D., defendant, to the supplemental bill of A. B., plaintiff. This defendant [as in No. 344], that this defendant, as ap- pears by the said supplemental bill, is not a party to the original bill therein in part stated and set forth ; nor does it appear by the said supplemental bill that any new matter has or is pretended to have arisen since the said original bill was filed, or that there is any reason why this defendant should not, if necessary, be made a party thereto by amend- ment. Wherefore, etc. [conclude as in No. 346.] (i) See note to No. 353. DEMURRERS. 5^5 No. 372. Demurrer to a Bill of Review and Supplemental Bill (i). \_Caption\. These defendants, by protestation, etc. [as in No. 127], do demur in law thereto, and for cause of demurrer show that there are no errors in the record and premises, and in the decree of the day of , in the said bill of review and supplemental bill mentioned, nor is there any sufficient matter alleged in the said bill of review and supplemental bill to entitle the said plaintiff to reverse the said decree; and for divers other defects and errors appearing in the said bill of review and supplemental bill, these defendants do de- mur in law thereto ; and these defendants, for further cause of demurrer, humbly show that, under the rules of this hon- orable court, no supplemental or new bill in the nature of a bill of review, grounded upon any new matter discovered or pretended to be discovered since the pronouncing of any decree of this court, in order to the reversing or varying of such decree, shall be exhibited without the special leave of the court first obtained for that purpose ; wherefore, and for that the said plaintiff does not allege by the said bill of re-, view and supplemental or new bill that he had first obtained leave of this court for exhibiting the said bill of review and supplemental or new bill, these defendants demur in law thereto, and humbly pray the judgment of the court whether they ought to be compelled to put in any further or other answer to the said plaintiff's said bill of review and supple- mental or new bill, and humbly pray to be hence dismissed with their reasonable costs in this behalf most wrongfully sustained. R. Y., Counsel for Defendant, (i) See note to No. 353. 526 SUITS IN EQUITY. No. 373. Demurrer to Bill of Review (x). [Caption J\ The demurrer of C. D., defendant, to the bill of review of A. B., plaintiflF. [Introduction, as in No. 344.] That by the constant rules of this court no bill of review ought to be admitted to alter or change [matters decreed, only for error in law ap- pearing in the body of the decree as it is drawn up and enrolled, or for new matter arising since the decree, or such matter of which the plaintiff in the bill of review could not have notice at the time of the decree ; but this defendant is advised that the matters assigned by the said bill of review for cause of reversal of the said decree, as the same thereby appear by said plaintiff's bill, are neither any error in law apparent in the body of this decree, nor any such new matter as aforesaid, but a misjudgment in matters of form only, and not in point of right; and that the state- ment contained in the said bill of review of the abatement of the suit before the decree passed is merely an exception in point of form. Wherefore, etc. [See No. 346.] (i) See note to No. 353. PLEAS. 527 PLEAS. No. 374. The Title. The plea of C. D., defendant [or, defendants], to the bill of complaint of A. B., plaintiff. No. 375. The Commencement of a Plea. [Capiz'on and title ^ This defendant \or, these defendants respectively], by pro- testation, not confessing or acknowledging all or any of the matters and things in the said plaintiff's bill of complaint mentioned and contained to be true, in such sort, manner, and form as the same are therein set forth and alleged, for plea to the whole of the said bill, \or, to so much and such part of the said bill as prays, etc., or, seeks a discovery from this defendant (or, these defendants). Whether, etc.] No. 376. The Conclusion of a Plea. All which matters and things this defendant'doth aver \or, these defendants do aver] to be true, and he pleads \or, they plead] the said [statute, or, release, etc., as the case may be {in bar) ] to the said plaintiff's bill \or, if the plea extend to part only, to so much of the said bill as hereinbefore particularly mentioned], and prays \or, pray] the judgment of this honor- 528 SUITS IN EQUITY. able court whether he [or, they] should be compelled [or, ought to be required] to make any other or further answer to the said bill [or, to so much of the said bill as is hereinbefore pleaded to], and prays [or, pray] to be hence dismissed with his lor, their] costs and charges in that behalf, most wrong- fully sustained (i). R. Y., of Counsel for Defendant, (i) See 31st Rule in Equity. No. 377. Verification of Plea. See 31st Rule in Equity, and for form of Affidavit see No. 350. No. 378. Certificate of Counsel. See 31st Rule in Equity, and for form of Certificate see No. 351. No. 379. Plea of Infancy to a Bill Exhibited Without a Prochein Ami (i). {Title and commencement.'] That the said plaintiff, before and at the time of filing his said bill' in which he appears as the sole plaintiff, was, and now is, an infant under the age of twenty-one years, that is to say, of the age of or thereabouts. Therefore, etc. [_See No. 381.] (l) There must be an affidavit and certificate of counsel, 31st Rule in Equity. For forms see No. 3S0 and No. 351. PLEAS. 529 No. 380. Plea of Lunacy (i). [ Title and cominencenientP^ That the said plaintiff, who by himself alone attempts to sustain an injunction in this suit, before and at the time of filing his said bill, was duly found and declared to be a lunatic, under and by virtue of a commission of lunacy, duly awarded and issued against him, as by the inquisition thereon (a true copy whereof is now in this defendant's possession, and ready to be produced to this honorable court), to which this defendant craves leave to refer, will more fully appear; and which said commission has not hitherto been superseded, and still remains in full force and effect; and the said A. B. therein named and the said plaintiff is, as this defendant avers, one and the same person, and are not other and different persons. Therefore, etc. [.S"^^ No. 381. J (i) See note to No. 379. No. 381. Plea, that the Supposed Intestate is Living, to a Bill where the Plaintiff Entitled Himself as Admin- istrator (i). [ Title and commencement^ That A. B., in the said bill named (to whom the said plaintiff alleges that he has obtained letters of administra- tion, and by virtue of which letters of administration, and also under the pretense of his being the heir at law of the said A. S., the said plaintiff has commenced and prosecuted this suit), was, at the time the said plaintiff filed his said bill, and still is, alive at Paris, in the kingdom of France. Therefore this defendant demands the judgment of this honorable court, whether he shall be compelled to answer the said plaintiff's bill; and humbly prays to be dismissed with his reasonable costs in this behalf sustained. (i) See note to No. 379. 530 SUITS IN EQUITY. No. 382. Plea that the Defendant Never was Administrator (i). \Title and commencement^ That he is not, nor ever has been, administrator of the goods or estate which were of the said E. F., deceased, in the said bill named, as the said plaintiff in his said bill has untruly alleged. Therefore, etc. \_See No. 381. ]• (i) See note to No. 379. No. 383. Plea to the Jurisdiction (i). [^Ttile and commencement^ The C. D. Co., the above-named defendant, specially appearing under protest for the purpose of this plea and for no other, says that it is not a corporation organized under the laws of the state of , nor citizen nor inhabitant of said state of , nor does it reside therein, but that it is a corporation organized under the laws of the state of -^ , and an inhabitant of said state of , and residing at , in the district of , where its corporate meetings are held and its corporate business transacted. Wherefore, insisting upon its exemption from suit in this court, it says that not this court, but the court of the United States for the district of has jurisdiction in the premises. The C. D. Co., By C. D., President. (i) Consult note to No. 379. See Act of March 3, 1887, as amended, 25 Stat, at L., 433. The objection that the defendant is not sued in the proper district must be raised by plea and not demurrer. See Beach's Modern Eq. Prac, sec. 302. Pleading to the merits waives exemption of being sued in wrong district. Central Trust Co. vs. McGeorge, 151 U. S. 129. Where federal jurisdiction appears on the face of the record, pleading to merits waives right to contest truth of averments of citizenship, Hartog vs. Memory, 116 U. S. s88; Butchers and Drovers Stock Yards Co., 14 C C. A. 290, 67 Fed. Rep. 35. PLEAS. 531 No. 384. Plea of Former Suit Depending (i). [ Title and commencement^^ That at a term of the court , which was held in the year , the said present plaintiff exhibited his bill of complaint in this honorable court against this defendant and one L. Y., for an account of the moneys raised by the sale of the plantations and other estates in the said plaintiff's present bill mentioned, and claiming such shares and proportions thereof, and such rights and interests therein, as he now claims by his present bill; and praying relief against this defendant in the same manner, and for the same matters, and to the same effect as the said plaintiff now prays by his said present bill ; and this defendant and the said L. Y. appeared and put in their answer to the said former bill, and the said plaintiff replied thereto, and witnesses were examined on both sides, and their depositions duly published, and the said former bill and the several proceedings in the said former cause, as this defendant avers, now remain depending, and as of record in this honorable court, the said cause being yet undetermined and undismissed ; all which several matters and things this defendant doth aver, and pleads the said former bill, answer, and the several proceedings in the said former suit, in bar to the said plaintiff's present bill; and humbly demands the judgment of this honorable court, whether he shall be put to make any further or other answer thereto ; and prays to be hence dismissed with his costs and charges in this behalf sustained. (i) See note to No. 379. It is a general rule that a plea ought not to contain more defenses than one. Various facts can never be pleaded in one plea unless they are all conducive to the single point on which the defendant means to rest his defense. Rhode Island vs. Massachusetts, 14 Peters, 210. 532 SUITS IN EQUITY. No. 385. Plea of Stated Account (i). \Title and commencement.'] As to so much and such parts of the said plaintiff's bill as seeks an account of and concerning the dealings and trans-, actions therein alleged to have taken place between the said plaintiff and this defendant at any time before the day of , in the year , this defendant for plea thereto says, that on the day of , which was previously to the said bill of complaint being filed, the said plaintiff and this defendant did make up, state, and settle an account in writing, a counterpart whereof was then delivered to the said plaintiff, of all sums of money which this defendant had before that time, by the order and direction, and for the use of the said plaintiff received, and of all matters and things thereunto relat- ing, or at any time before the said day of , being or depending between the said plaintiff and this defendant (and in respect whereof the said plaintiffs bill of complaint has been since filed), and the said plaintiff, after a strict ex- amination of the said account, and every item and particular thereof, which this defendant avers according to his best knowledge and belief to be true and just, did approve and allow the same, and actually received from this defendant the sum of dollars, the balance of the said account, which by the said account appeared to be justly due to him from this defendant; and the said plaintiff thereupon, and on the day of , gave to this defendant a receipt or ac- quittance for the same, under his hand, in full of all demands, and which said receipt or acquittance is in the words and figures following, that is to say [here state the receipt verba- tim], as by the said receipt or acquittance, now in the posses- sion of this defendant, and ready to be produced to this hon- orable court, will appear. Wherefore, etc. [Conclude as in No. 376.] (i) A plea of stated account obviously constitutes a bar to a suit in equity for an accounting, since in that case the remedy at law is en- PLEAS. 533 tirely adequate ; but of course a stated account may be opened for fraud and error. Pom. Eq. Jur., Sec. 1421. Parties wbo have long acquiesced in settlements of accounts or other mutual dealings are not permitted to reopen or disturb them ; and this is true even though the parties stood in confidential relations towards each other, as trustee and cestui que trust, principal and agent, and the like, and the settlement embraced matteis growing out of such relations. Pom. Eq. Jur., Sec. 820. (l) See 31st Rule in Equity, and note to No. 379. No. 386. Plea of Want of Interest of Defendant (i). [ Title and commencement^ As to so much of and such parts of the plaintiff's bill as charges that this defendant is interested in the personal estate of A. B., the testator in the said bill named, and seeks an account of the said testator's personal estate, this defend- ant pleads thereto, and for plea says that he is merely a sub- scribing witness to said testator's will, and in no wise inter- ested therein ; and this defendant avers that he has not, nor ever had, or pretended to have, nor does he or did he ever claim any right, title or interest whatsoever in the personal estate of the said testator, or any part thereof, and that the said plaintiff has no right to institute this or any other suit against him in respect thereof. All which said matters and things this defendant doth aver and plead in bar to so much of the said plaintiff's bill as hereinbefore particularly men- tioned and pleaded to. And this defendant, not waiving his said plea, but relying thereon, and for better supporting the same, for answer to so much of the said bill as aforesaid, saith he denies that he now is, or ever was, interested in the per- sonal estate of the said testator or any part thereof. \Con- clude as in No. 376.] (i) See note to No. 379. 534 SUITS IN EQUITY. No. 387. Plea of a \Vill (i). [ Title and commencement]. As to so much and such part of the said plaintiff's bill as seeks [that a receiver may be forthwith appointed to receive the rents and profits of the real estates, late of J. T., deceased, in the said bill named, and now in the possession of this defend- ant'], and that this defendant may account with the said plaintiff for the rents and profits thereof, and that this defendant may be restrained by the order and injunction of this honorable court from felling, etc., timber, etc., grow- ing thereon, or which seeks to set aside the will of the said J. T., or which seeks any relief relative thereto; this defend- ant doth plead thereto, and for plea saith, that the said J. T. being before and at the time of making his will, seized to him and his heirs, of and in divers manors, etc., in the sev- eral counties of, etc., of the yearly value of eleven hundred dollars or thereabouts, and being of sound mind, memory, and understanding, duly made and published his last will and testament in writing, bearing date the day of , which was executed by him in the presence of, and attested by, J. O., J. H., and R. S., and thereby gave, etc., [setting forth the will, under which the defendant had an estate for life in the testator'' s real estate, with remainder to the defend- ants sons, and that the testator appointed the defendant exe- cutor of his said will] ; and the said James Thompson, being so seized or entitled as aforesaid, died on the day of last, without having altered or revoked his said will ; aiid this defendant, soon after the death of the said testator, entered on the said real estates devised to him in manner aforesaid, and has ever since been in the enjoyment or receipt of the rents and profits thereof. Therefore, etc. [See No. 376.] (i) See note to No. 379. PLEAS. 535 No. 388. Plea of an Award (i). \Title and commencement^ That divers disputes, controversies, and differences having arisen, and being depending, between tlie said plaintiff and this defendant concerning an agreement for the purchase by this defendant, from the said plaintiff, of the lease, good- will, and fixtures of a certain house and premises, used as a baker's shop, in , in the county of ; for the set- tling and adjusting such variances and controversies, the said plaintiff and this defendant, by two several bonds or writings, obligatory, bearing date respectively the day of , became reciprocally bound to each other in the penal sum of dollars to be paid to each other, with conditions to the said writings obligatory annexed to make void the same, if the said plaintiff and this defendant, their respective exe- cutors, administrators, and assigns should obey and perform the award, arbitrament, judgment, final end, and determina- tion of I. S., an arbitrator indifferently chosen between the said parties, concerning the said disputes, controversies, and differences, in respect of the said agreement for the purchase of the lease, good-will, and fixtures of the premises aforesaid, so as the said award under the hand of the said arbitrator should be made and set down in writing under his hand, ready to be delivered to the parties in difference on or before the day of then next, but now long since past; and the said I. S. having taken upon himself the burden of the said award, and having deliberately and at large heard, read, and duly and maturely weighed and considered all and singu- lar the allegations, vouchers, proofs, and evidences brought and produced before him, by and on the part and behalf of the said plaintiff and this defendant, touching the said mat- ters in dispute and difference between them, and referred to him as aforesaid, did within the time limited for that pur- pose by the said bonds, that is to say, on the day of 536 SUITS IN EQUITY. , duly make his award in writing under his hand and seal, of and concerning the matters aforesaid (one part whereof was delivered to this defendant), and did thereby award and find that the aforesaid agreement between the defendant and the said plaintiff, relative to the aforesaid lease, good- will, and fixtures, was not binding upon them, and the said arbitrator did therefore declare the same void accordingly; and the said arbitrator did thereby award and declare that the said plaintiff had no claim or demand whatsoever against this defendant, in respect or on account of the said agree- ment, as by the said award, reference being thereunto had, will more fully appear; and this defendant avers that the said award hath hitherto remained and still is unimpeached, and in full force and effect; and that the same was made previously to the said plaintiff's bill being filed in this hon- orable court for the specific performance of the said agree- ment so declared void by the said award as aforesaid. Therefore, etc (2). (i) An award is treated as the continuance of the agreement to sub- mit. If it directs acts to be done, which if stipulated for in a contract would render such contract capable of enforcement, then the award itself may be specifically enforced. Pom. Eq. Jur., Sec. 1402. (2) See 31st Rule in Equity," and note to No. 379; and for closing words see No. 376. No. 389. Circumstances Bringing a Case Within the Protection of a Statute, viz., the Statute of Limitations, or the Stat- ute of Frauds (i) [ Title and commencement^] As to so much of the bill as seeks an account and discovery of the estate and effects of H. C, Esq., deceased, this defend- ant's testator, or that seeks a satisfaction for, or in respect of, any money received by the said H. C, for or on account of I. G., in the said bill narned, or for or on account of the said PLEAS. 537 plaintiff; or that seeks a discovery of how many hogsheads of tobacco or rice, or any other commodities pretended to have been consigned to the said H. C, or that seeks a satis- faction for the same ; or that seeks a discovery or satisfaction for any of the money, goods, or effects of the said I. G., come to the hands of this defendant, since the decease of the said H. C; this defendant pleads thereto, and for plea says, that the said I. G., under whom this defendant claims, departed this life in or about the year , and that the said H. C, this defendant's testator, afterwards also departed this life in the month of , in the year , and that the matters and effects pretended to have been received by the said H. C, or by this defendant, and the goods and commodities pre- tended to have been consigned (if any sums of money, goods, or effects were received by the said H. C, or by this defend- ant, which this defendant does not admit), were received by the said H. C, or by this defendant above six years before this defendant was served with any process of this honorable court to answer the said bill, or any process whatsoever was sued against this defendant to account for the same ; and that if the said plaintiff had any cause of action or suit against this defendant, or against the said H. C. for or concerning any of the said matters, which this defendant does not admit, that such cause of action or suit did not accrue or arise within six years before the said bill was filed, or this defendant served with process ; nor did this defendant, or his testator, at any time within six years before the said bill was exhibited, or process sued out against this defendant, promise or agree to come to any account, or to make satisfaction, or to pay any sum or sums of money, for or by reason of any of the said matters ; and that by a certain act of , for the limit- ation of actions and suits at law, it was enacted, etc. [state the statute to be pleaded\ and this defendant pleads the several matters aforesaid in bar to so much of the plaintiff's said demand as aforesaid, and prays the judgment of this honorable court thereon ; and this defendant for answer, etc. 53^ SUITS IN EQUITY. (i) See 31st Rule in Equity, and note to No. 379. In the earlier forms of the statute of limitations the provisions were in express terms confined to actions at law; and yet courts of equity, proceeding upon the analogy of these enactments, in most suits to enforce equitable titles to real estate and equitable personal claims, applied the statutory periods. In certain kinds of suits, however, especially those brought against trustees to enforce express trusts, the analogy of the statute was not followed. The modern forms of these statutes in the American States generally declare in express terms that periods of limitation shall apply to all equitable suits as well as legal actions. Pom. Eq. Jur., Sec. 419. Courts of equity ftave also been in the habit of applying the statute of limitations as a bar, by analogy, in all ordinary cases, even though equitable suits were not expressly included within the statutory pro- visions. See Kane vs. Bloodgood, 7 Johns. Ch., 90 ; Lansing vs. Starr, 2 Johns. Ch., 150. There is no technical rule observed by the court of chancery as to the form of a plea of the statute of limitations. A plea which sets up an adverse possession of forty years, while the period required by the statutes of the state to bar a recovery is twenty years, is good ; nor is it necessary to make any express reference to the statutes of the state. Harpending vs. Reformed Protestant Dutch Church, 16 Peters, 455. No. 390. Plea of Purchase for a Valuable Consideration without Notice (i). l^Tiile and commencement?^ As to so' much of the said bill as seeks an account of what is due and owing to the said plaintiff, in respect of the annuity of dollars therein mentioned, and stated to be charged upon, and issuing out of, the hereditaments and premises therein and hereinafter mentioned, this defendant pleads thereto, and for plea says that A. B., previously to and on the day of , was, or pretended to be, seized in fee-simple, and was in, or pretended to be in, the actual possession of all these manors, in the said bill particularly mentioned and described, free from all incumbrances what- PLEAS. 539 soever; and this defendant, believing that the said A. B. was so seized and entitled, and that the said hereditaments and premises were in fact free from all encumbrances, on the day of , agreed with the said A. B. for the abso- lute purchase of the fee-simple and inheritance thereof; whereupon certain indentures of lease and release, bearing date respectively on, etc., between the said A. B. of the one part, and this defendant of the other part, were duly made and executed ; and by the said indenture of release the said A. B., in consideration of the sum of dollars, paid to him by this defendant, granted, bargained, sold, released, and confirmed unto this defendant, all, etc. [se( out the parcels verbatim from the deed\, to hold unto, and to the use of this defendant, his heirs and assigns forever ; and in the said in- denture of lease is contained a covenant from the said A. B. with this defendant, that he, the said A.B., was absolutely seized of the said hereditaments and premises, and that the same and each of them and every part thereof were and was free from all encumbrances ; as by the said indentures of lease and release respectively, reference being thereunto had, will more, fully appear ; and this defendant avers that the said sum of dollars, the consideration money in the said indenture of release mentioned, was actually paid by this de- fendant to the said A. B., at the time the said indenture of release bears date ; and this defendant also avers that at or before the respective times of the execution of the said indentures of lease and release by the said A. B. and this defendant, and of the payment of the said purchase-money, he, this defendant, had no notice whatsoever of the said annu- ity of dollars, now claimed by the said plaintiff, or of any other encumbrance whatsoever, that in anywise affected the said hereditaments and premises, so purchased by this defendant as aforesaid, or any of them, or any part thereof; and this defendant insists that he is a bona fide purchaser of the said hereditaments and premises for a good and valu- able consideration, and without any notice of the said annu- 540 SUITS IN EQUITY. ity claimed by the plaintiff; all wliich matters and things this defendant avers and pleads in bar to so much of the said plaintiff's bill as is hereinbefore particularly men- tioned; and prays the judgment of this honorable court, whether he should make any further answer to so much of the said bill as is hereinbefore pleaded to ; and this defend- ant, not waiving his said plea, but relying thereon, and for better supporting the same, for answer says that he had not at any time before, or at the time of, purchasing the said hereditaments and premises, or since, until the said plain- tiff's bill was filed, any notice whatsoever, either expressed or implied, of the said annuity of dollars claimed by the said plaintiff, or that the same or any other encumbrance whatsoever was charged upon or in anywise affected the said hereditaments and premises so purchased as aforesaid, or any of them, or any part thereof; and this defendant denies, etc. [continue with answer^ See 31st Rule in Equity, and note to No. 379. No. 391. Plea of Want of Proper Parties (i). [ Title and commencement^ As to so much of the said complainant's (2) bill as seeks an account from this defendant, as executor and heir at law of H. E., Esq., deceased, in the said bill named, this defend- ant's late brother, for what remains due and owing upon the bond in the said bill mentioned, bearing date the day of , in the year , and payment by this defendant as such executor and heir at law of the said H. E., deceased, as aforesaid, of what shall be found due on taking such account; this defendant pleads thereto, and for plea says that no part of the sum of $ , for securing the repayment whereof the said bond was executed, was paid to or received by the said H. E., but that the whole was paid unto A. W., in the PLEAS. 541 said bond and in the said bill also named, and received by him for his sole use, and that the said H. E. was only surety for the said A. W., and that the said complainant afterwards accepted a composition for what he alleged to be due on said bond from the said A. W. without the privity of the said H. E. in his lifetime, or this defendant since the death of the said H. E., which took place on or about the day of , as in the said bill mentioned, since which no demand has been made on this defendant for any money alleged to be due on the said bond; and that the said A. W. died several years ago, seized of considerable real estates, and also pos- sessed of a large personal estate, and that his heir at law, or the devisee of his real estate, and also the representative of his personal estate, ought to be, but are not, made parties to the said bill. Therefore, etc. [See No. 376.] (i) See note to No. 379. (2) See note to No. 207. No. 392. Plea that the Discovery Sought by the Bill would Betray the Confidence Reposed in the Defendant as an At- torney (i). [ Tzile and commencement^ As to so much and such part of the said bill as seeks a discovery, from this defendant of the \_state what], of E. F., another defendant in the said bill named; this defendant pleads thereto, and for plea says that he, this defendant, is duly admitted and sworn an attorney of the several courts of the state of , and also a solicitor of this honorable court, and has for several years past practiced, and now practices, as such; and this defendant was employed in that capacity by E. F., the said other defendant, and in that capacity only, or by means of such employment only, has had the inspection and perusal of [state what], or any part or parts thereof, for the use and service of his said clients, and therefore ought 542 SUITS IN EQUITY. not, as this defendant is advised, to be compelled to discover the same. Wherefore, etc. ^See No. 376.] (i) A party will not be compelled to disclose the legal advice given him by his attorney or counsel, nor the facts stated, nor the matter communicated between himself and them in reference to the pending suit, or to the- dispute which has resulted in the present litigation ; nor, on the other hand, will these professional advisers be compelled or permitted to disclose the matters which they have learned or com- municated in the same manner. Pom. Eq. Jur., Sec. 203. See also 31st Rule in Equity and note to No. 379. No. 393. Plea to a Bill of Revivor (i). \^Title and commencement^ That the said plaintiff is not, as stated in the said bill of revivor, the personal representative of A. B., deceased, the testator therein named, and as such entitled to revive the said suit in the said bill of revivor mentioned against this defendant ; but the said plaintiff is the administrator only of C. D., late of , deceased, who died intestate on the day of last, and was the sole executor of the said A. B. ; and that letters of administration of the goods and estate of the said A. B., unadministered by the said C. D. in his life- time, have since the death of the said C. D. been duly granted by the proper court to E. F., of , who thereby became, and now is, the legal personal representative of the said A. B. Wherefore the said defendant demands the judgment of this honorable courtwhether he shall be compelled to answer the said plaintifiPs bill, and humbly prays to be dismissed with his reasonable costs in this behalf sustained. C. D. See note to No. 379- PLEAS. 543 No. 394. Plea to Supplemental Bill (i). \Title and commencement^ That the several matters and things in the said plain- tiff's present bill, stated and set forth by way of supplement, arose and were well known to the said plaintiff, before and at the time the said plaintiff filed his original bill in this cause ; and that such said several matters and things can now be introduced, and ought so to be, if necessary, by amending the original bill. Wherefore, etc. {^continue as in No. 393]. (i) See note to No. 379. No. 395. Plea to Part, and Answer to Residue of Bill. l^Captz'on.^ The plea of C. D., defendant [or, one of the defendants], to part, and the answer of the same defendant to the residue, of the bill of complaint of A. B., plaintiff [or, the joint plea and answer, or, the joint and several plea and answer, ac- cording to circumstances^ This defendant, to all the relief sought by the said bill, and also to all the discovery thereby sought, except the discovery sought by or in respect of \so much of the said bill as prays that this defendant may answer and setfortH], whether, etc. \here the language of the interrogatories which it is neces- sary to answer must be introduced'], this defendant does plead in bar, and for plea says, etc. [here follows the pled]. All which matters and things this defendant avers to be true, and does plead the same in bar to the whole of the said bill, except such part of the discovery thereby sought as aforesaid ; and this defendant humbly prays the judgment of this honorable court whether he ought to be compelled to make any further or other answer to so much of the said bill as is hereby pleaded to, and he prays to be hence dis- missed with his costs. And for answer to such parts of the said bill as'are excepted this defendant says that, etc. [here the answer follows']. 544 SUITS IN EQUITY. ANSWERS. No. 396. The Commencement. The answer of C. D.., the defendant [or, one of the defend- ants], [or, the joint and several answers of C. D. and P.D., the defendants (or, two of the defendants)], to the bill of com- plaint of A. B. and S. B., plaintiffs. No. 397. Same, wrhere there is only one Defendant to an Original Bill. [CaJ>iwn.'\ The answer of C. D., defendant^ to the bill of complaint of A. B., plaintiff. No. 398. Same, by an Infant. [Caption. ] The answer of C. D., an infant under the age of twenty- one years, by Iv. M., his guardian, defendant [or, one of the defendants], to the bill of complaint of A. B., plaintiff. No. 399. Same, by Husband and Wife. [Caption^ The joint answer of C. D. and E., his wife, defendants, to the bill of complaint of A. B., the plaintiff. ANSWERS. 545 No. 400. Another Form by Husband and Wife. \_Capiion.\ The joint answer of C. D. and E., his wife, the \or, two of the] above-named defendants, to the bill, etc., \or, if they were married since she was made a defendant, say\\ The joint answer of C. D. and E., his wife, lately and in the bill called C. S., spinster [<9r, widow], to the bill, etc. In answer to the said bill, we, C. D. and E., his wife, say as follows: NO. 401. Same, where the Bill Misstates the Names of Defendants. \Caption^ The answer of E. D., one of the above-named defendants, and the wife of [the defendant] C. D., to the bill, etc. In answer to the said bill, I, E. D., answering separately from my husband, in pursuance of an order of this honor- able court, dated the day of 1894, authorizing me so to do, say, as follows: NO. 402. Same, by a Lunatic or Idiot, etc. \Caption?\^ The joint answer of C. D., a lunatic [or, idiot, or, imbecile person], by T. P., his guardian ad litem, and T. P., committee of the said C. D., defendants, to the bill of complaint of A. B., the plaintiff. NO. 403. Same, by Wife Separately under an Order. \Captioni\ The joint and several answers of C. D., in the bill called R. D., and of C. E., in the bill called D. E., defendants, to the bill of complaint of A. B., plaintiflF. 546 SUITS IN EQUITY. No. 404. The First Paragraph of Answer (i). {^Caption and commencement.'] This defendant \^or, these defendants respectively], now and at all times hereafter saving to himself [or, themselves] all and all manner of benefit or advantage of exception or otherwise that can or may be had or taken to the many errors, uncertainties, and imperfections in the said bill con- tained, for answer thereto, or to so much thereof as this de- fendant is [or, these defendants are] advised it is material or necessary for him [or, them] to make answer to, answering, says \^or, severally answering, say] : (i) These words, of course, are inserted in all answers after the commencement and before the matters set up in defense of the action. No. 405. Same, bv a Formal Party who is a Stranger to the Facts. \Caption and commencemsnti\ This defendant, saving and reserving to himself, etc. [as in No. 404], answers and says that he is a stranger to all and singular the matters and things in the said plaintiff's bill of complaint contained, and therefore leaves the plaintiff to make such proof thereof as he shall be able to produce with- out this, that, etc., {conclude as in No. 407]. NO. 406. Same, by an Infant. \Caption and commencement^ This defendant, answering by his said guardian, says that he is an infant of the age of years, or thereabouts, and he therefore submits his rights and interests in the matters in question in this cause to the protection of this honorable court ; without this, that, etc. [continue as in No. 407] . ANSWERS. 547 NO. 407. The Conclusion of an Answer (i). And this defendant denies all and all manner of unlawful combination and confederacy wherewith he is by the said bill charged, without this, that there is any other matter, cause, or thing in the said plaintiff's said bill of complaint contained, material or necessary for this defendant to make answer unto, and not herein or hereby well and sufficiently answered, confessed, traversed, and avoided or denied, is true to the knowledge or belief of this defendant; all which matters and things this defendant is ready and willing to aver, maintain, and prove, as this honorable court shall direct, and humbly prays to be hence dismissed with his reasonable costs and charges in this behalf most wrongfully sustained. C. D. (i) As to the signature to an answer, see Beacli's Modern Eq. Prac, Sec. 355; Foster's Fed. Prac, Sec. 151. NO. 408. Verification of Answer (i). State of , County of , ss. C. D. makes solemn oath and says: I am the aBove- named defendant. So much of the foregoing answer as con- cerns my own acts and deeds is true to the best of my own knowledge ; and so much thereof as concerns the acts or deeds of any other person or persons I believe to be true. CD. Sworn to before me this day of . [Seal.] J. N., Notary Public, County. (i) P'or another form of affidavit see No. 279. Unless specially waived in the bill, the defendant must answer under oath. See Fulton Bank vs. Beach, 2 Paige (N. Y.) 307, Dan. Ch. Pr., 735; 41st and sgth Rules in Equity; Foster's Fed. Prac, Sees. 84, 148, and 151 ; and Beach's Modern Equity Prac, Sec. 356. 548 SUITS IN EQUITY. COMMON FORMS USED IN FRAMING ANSWERS. NO. 409. Accounts — Reference to Book containing them. The dealings and transactions in respect of the said trade are entered in a large book, or ledger, kept on the premises at , and the items in respect thereof are contained in one hundred and sixty-four pages, with double columns, of the said book; and to set out such items in detail would occasion very great expense ; but we are willing, if the court shall think proper so to direct, that the plaintiflf or his solicitor should inspect the said book, and take extracts therefrom, at all reasonable times of the day. No. 410. Accounts Refused, as Being Useless Before Decree. And we say and submit that it would only occasion great and useless expense were we in this our answer to set forth any further or fuller account of the rents and profits afore- said ; and that the same ought to be taken, if at all, by and under the directions and decree of this honorable court. No. 411. Admission for Purposes of the Suit (i). We have no personal knowledge of the fact, but, for the purposes of the suit, we admit that, etc. or, And this defendant further answering, says he has been informed and believes it to be true , that, etc. <9r, this de- fendant admits that, etc. COMMON FORMS USED IN FRAMING ANSWERS. 549 (i) The averments of a bill in equity may be considered as estab- lished whenever the statements in the answer can, by fair interpreta- tion, be construed into an admission of or acquiescence in them. Surget vs. Byers, Hempst., 715. Plaintiff is entitled to a full answer as to every material allegation of his bill. Price OT. Tyson, 22 Am. Dec, 279. If the answer is silent as to a fact charged to be, or which may fairly be presumed to be, within the knowledge of defendant, such fact will be deemed to be admitted. Moore vs. Lockett, 4 Am. Dec, 683. No admissions in an answer to a bill in chancery can, under any circumstances, lay a foundation for relief under any specific head of equity unless the ground be substantially set forth in the bill. Jack- son vs. Ashton, II Peters, 229. If the answer of the defendant admits a fact, but insists on a matter by way of avoidance, the complainant need not prove the fact admitted, but the defendant must prove the matter in avoidance. Clark vs. White, 12 Peters, 178 ; affirming, 5 Cranch C. C, 102. A denial in an answer in equity that defendant " delivered " an alleged deed goes for nothing if the answer admits facts and circum- stances which do in law constitute delivery. Adams vs. Adams, 21 Wall., 185. An evasive answer with admitted facts may entitle complainant to the relief prayed for. Allen ps. Elder, 2 Am. St. Rep., 63. NO. 412. Claims Made by Defendant (i). I claim to be interested in the matters of this suit, by virtue of, etc. The short particulars of the mortgage now vested in us, and of our title thereto, are as follows, etc. We claim to be equitable mortgagees of the hereditaments mentioned in the said bill, together with other hereditaments, under a memorandum in the words and figures following; that is to say, etc. We claim a lien on the shares of, etc., for so much of the said debt as arises from the unpaid purchase-money of the same shares respectively, and the interest thereof. 55° SUITS IN EQUITY. (i) After having answered all the allegations of the bill, defendant may go on and state matters in bar or avoidance of plaintiff's claim, by way of further answer. Price vs. Tyson, 22 Am. Dec, 279. But if the answer goes out of the bill to state anything not material to the defendant's case, it will be expunged as impertinent. Price vs. Tyson, 22 Am. Dec, 279. NO. 413. Craving Leave for Greater Certainty. We admit that, etc. \or, we believe that, etc.], but, for greater certainty, we crave leave to refer to the said, etc., when produced. No. 414. Craving Leave to Refer to Codefendant's Answer. I know little or nothing respecting the deeds, dealings, and transactions stated in the said amended bill; but I have seen a copy of the answer proposed to be forthwith put into the amended bill by the defendants, J. L. and G. W. F., and I have no doubt but that the statements contained in such answer are correct. However, for my greater certainty, as to the contents of deeds and other written documents, I Crave leave to refer to such deeds or documents. Under the cir- cumstances hereinbefore stated, and to avoid expense and prolixity, I abstain from answering, categorically, the inter- rogatories filed for the examination of the last-named defend- ants and myself in answer to the amended bill ; but if the plaintiffs so desire I am ready and willing to put in a full answer to the said amended bill. NO. 415. Inforrhation and Belief. I have been informed and believe that, etc. I believe that, etc. COMMON FORMS USED IN FRAMING ANSWERS. 55 ^ We have no reason to doubt, and therefore we believe that, etc. We believe that the statements contained in the para- graphs numbered respectively from i to 8, both inclusive, of the plaintiff's bill of complaint are true, except in the par- ticulars or respect hereinafter mentioned ; that is to say, etc. I, this defendant, CD., say, and we, these other defend- ants, believe it to be true, that, etc. We have no personal knowledge of the matters inquired after by the interrogatory filed in this cause; but we have no reason to doubt, and therefore we believe, that, etc. NO. 416. Ignorance (i). I [or, we] do not know, and can not set forth as to my [or, as to either of our] belief or otherwise, whether or not it is alleged or is the fact that, etc. (i) An answer stating that the respondent has no knowledge that the facts are as stated in the bill of complaint, without any answer as to his belief concerning it, is deemed sufficient to prevent the bill from being taken as confessed, as it may be if no answer is filed, in case the complainant does not except to the answer for insufficiency within the period prescribed by the 6ist Rule in Equity. Brown vs. Pierce, 7 Wall., 205. See Bradford vs. Geiss, 4 Wash., 513. NO. 417. Qualified Denial. Save as herein appears, it is not the fact, etc. Save as herein appears [or, save as by the said schedule appears], I do not know, etc. NO. 418. Reference to Schedule. I have in the schedule hereto annexed, and which I pray may be taken as part of this my answer, set forth, to the best of my knowledge, information, and belief, a descrip- tion of, etc. 552 SUITS IN EQUITY. NO. 419. Release, Craving some Benefit as if Pleaded. We submit, and humbly insist, that the said release so exe- cuted as aforesaid, and the payment of the said sum of $ , and the receipt given for the same, is a full discharge ; and we claim the same benefit as if we had pleaded the same release. Nevertheless, we are willing and hereby submit to account as this honorable court may think fit. NO. 420. Settled Accounts — Claim of. The account so stated and settled was in fact stated and settled by the said A. B. and myself, as it purports to be, on the day of the date thereof; and I claim the benefit thereof as a settled account. NO. 421. Submission by Trustees to Act. We submit in all things to act as this honorable court shall direct, and we claim to have our costs, charges, and expenses, properly incurred, paid out of the estate of the said testator. NO. 422 Traverse. The said J. S. died on the day of , and not on the ^ay of , as in the second paragraph of the said bill erroneously stated ; but, save as aforesaid, we do not know, and are unable, as to our belief or otherwise, to set forth whether or not the statements or some or one or which of the state- ments contained in the paragraphs numbered respectively i to 8, both inclusive, of the plaintiff's bill of complaint, are or is true, or which of them are or is or in what respect untrue, or how otherwise. COMMON FORMS USED IN FRAMING ANSWERS. 553 NO. 423. Trustee — Desire to be Discharged. I have never in any manner intermeddled with the said trust estate, nor received any of the rents or profits thereof; and I am very desirous to be discharged from the trusts in the bill mentioned, and I am ready and willing to convey and release the trust premises to such persons, or to do such other acts, as this honorable court shall direct for this purpose, upon being indemnified in so doing, and having my costs and expenses. NO. 424. Vexatious Suit; Settled Accounts; Claim of Benefit of Defense as if Raised by Plea or Demurrer, We submit to the judgment of this honorable court, and humbly insist, that this suit is altogether unnecessary and vexatious ; and that even if the plaintiff had been entitled to such relief as is prayed by the said bill, the said relief might have been obtained by proceedings at law ; but we say that a large sum of money has been for a long time, and now is, justly due and owing to us from the plaintiff; and that during the whole of the transactions in the said bill mentioned we were in advance with creditors of the plaintiff; and that the plaintiff has repeatedly and partly in the letters hereinbefore set forth acknowledged the accuracy of the accounts rendered by us to him, and has treated the same as being, as in fact they were, settled accounts ; and we claim the same benefit from this, our answer, as if we had pleaded the matters herein stated, or any of them, or as if we had demurred to the said bill. NO. 425. Want of Interest in Plaintiff; Craving some Benefit as if Defense by Demurrer. I am advised, and "humbly submit, that the plaintiff has not any interest in the estate of the said testator, or in the mat- 554 SUITS IN EQUITY. ters in question in this suit, nor any such estate or interest in the said testator's estate, or the matters aforesaid, so as to entitle the plaintiff to sustain this suit ; and I crave the same benefit from this defense as if I had demurred to the said bill. NO. 426, Claim of Benefit of same Defense to Amended, as to Original Bill. We submit that the plaintiff has not by his said amended bill entitled himself to any equitable relief as against us; and we accordingly claim the benefit of the same objections to the said amended bill which are made by our said answer to the said original bill. NO. 427. Answer of an Executrix Submitting to act under the Indemnity of the Court. \Caption^ commencement^ and first paragraph^ This defendant says that she admits that S. W., the testator in the said bill named, was at the time of his death possessed of a considerable personal estate, and particularly of the sev- eral sums in the public stocks or funds in the said bill of complaint mentioned; and that the said testator duly made and published his last will and a codicil thereto, of such re- spective dates, and to such purport or effect as in the said bill in that behalf stated ; but, nevertheless, etc. Believes that the said testator did, soon after making said will and codicil, depart this life without altering or revoking the said will, save by the said codicil, or without altering or revoking the said codicil, leaving this defendant, his widow, and such other persons as in the said bill in that behalf named, him surviving; Admits that she has duly proved the said will and codicil in the proper court, and has taken upon herself the execu- tion thereof, and has by virtue thereof possessed herself of COMMON FORMS USED IN FRAMING ANSWERS. 555 as much of the said testator's personal estate and effects as she has been able to do; and this defendant denies that she ever threatened to sell or dispose of the said stocks, funds, and annuities in the said will and bill mentioned, without any regard to the interest of the said complaints in remainder therein, or has made any transfer of the same; Submits to this honorable court what interest the said com- plainants are entitled to in the personal estate of the said S. W. by virtue of his said will ; Says she has in a schedule, etc., set forth a true and par- ticular account of all the personal estate to which the said testator was entitled at his death, distinguishing what part thereof has come to her hands, or to the hands of any other person or persons for her use, except such sums as are men- tioned in the schedule hereinafter referred to; Says she has in the second schedule, etc., set forth an ac- count current between her and the estate of the said S. W. and this defendailt, and has therein set forth to the best of her knowledge, etc., a full and true account of all sums of money, part of the personal estate of the said testator come to her hands, or to the hands of any person or persons to her use, and of the application thereof; Says she is ready and willing to account as this honorable court shall direct, for all such parts of the personal estate of the said testator as have been possessed or received by this defendant, having all just and reasonable allowances, made, which she is entitled to as such executrix; and in all other respects this defendant submits to act as the court shall di- rect, upon being idemnified and paid her costs of this suit ; {conclusion, see No. 407.] NO. 428. Answer of the Executors of a Deceased Acting Executor to a Bill of Revivor. \_Caption, commencement^ and first paragraph.'\ These defendants say that they believe it to be true that at or about the time in the said bill stated, R. W., in the said SS6 SUITS IN EQUITY. bill of revivor named, exhibited his original bill of complaint in this honorable court against such parties as defendants thereto, as in the said bill mentioned, thereby stating and praying to the eflfect in the said bill of revivor set forth, so far as the same is therein set forth, and that in consequence of the death of the said R. W., the said plaintiff, T. W., at or about the time in the said bill of revivor mentioned, ex- hibited his supplemental bill in this honorable court against such parties defendants thereto as therein mentioned, stating and praying to the effect in the said bill of revivor set forth, so far as the same is therein set forth. And that the said several defendants in the said supplemental bill named after- wards appeared and put in their answers thereto, and that such proceedings have since been had in the said cause as in the said bill of revivor mentioned; but for their greater cer- tainty, nevertheless, these defendants crave leave to refer to the said original and supplemental bills, answers, and other proceedings now remaining filed as of record in this honorable court; and these defendants further severally answering, say they admit it to be true that before any further proceedings were had in the said cause, and at or about the time in the said bill of revivor in that behalf stated, G. R., one of the de- fendants to the said original and supplemental bills, and one of the executors and trustees under the will of the testator T. W., in the said bill of revivor named, and who has principally acted in the trusts thereof, departed this life, having first duly made and published his last will and testament in writing, of such date as in the said bill of revivor mentioned, and thereof appointed these defendants executors; and these defendants admit that since his death they have duly proved his said will in the proper court, and undertaken the executorship thereof, and are thereby become his legal personal repre- sentatives, and that they possessed the said G. R.'s personal estate and effects so far as they have been conveniently able, and these defendants believe (although they do not admit the same) that such personal estate and effects are sufficient to COMMON FORMS USED IN FRAMING ANSWERS 557 answer whatever might be due from the said G.R. at the time of his death to the estate of the said testator T. W., if anything were so due ; but these defendants not knowing the amount thereof are advised that they can not with safety or propriety admit assets of their said testator to be in their hands suf&cient to answer the same, and these defendants say they are ready to account for the said G. R.'s personal estate possessed by them, or for their use, in such manner as the court shall be pleased to direct, if the same should become necessary; and these defendants further severally answering, say they submit that the said suit and proceedings which became abated on the death of the said G. R. may stand and be revived against them as such executors as aforesaid, and be restored to the same plight and condition in which they were at the time of the death of the said G. R. ; \_conclusion, see No. 407.] NO. 429. Answer of a Widow Electing to take the Bequests Made to Her by a Will, and to Release all Interest in the Devised Estates. \Caption, commencement, and first paragraph.'] This defendant says that she believes it to be true that C. B., deceased, the testator in the said bill of complaint named, being possessed of a large personal estate, did, at or about the time in the said bill of complaint mentioned, duly make and publish his last will and testament in writing, of such pur- port and effect, and containing such, bequest to this defend- ant as in the said bill of complaint in that behalf set forth, and that the said testator appointed such persons as in the said bill of complaint named executors and executrix of his said will. And this defendant further answering says that she be- lieves it to be true that the said testator afterwards, and at or about the time in the said bill of complaint mentioned, duly 558 SUITS IN EQUITY. made and published a codicil to his said will in such words and to such purport and effect as in the said bill of complaint also set forth ; but for her greater certainty, nevertheless, as to the said will and codicil, and the respective dates, purports, and contents thereof, this defendant craves leave to refer thereto when produced. And this defendant further answering says that she admits that the said testator departed this life at or about the time in the said bill of complaint in that behalf mentioned with- out having in any manner altered or revoked his said will, save by the said codicil, and without having altered or re- voked his said codicil ; and that the said plaintiffs have since duly proved the said will and codicil in the proper court, and taken upon themselves the executorship thereof And this defendant further says that she claims to be en- titled to the benefits intended her by the said testator's will, and is ready, upon the same being secured to her according to the directions in the said will contained, to release to J. P., in the said will named, all her right and interest in and to the premises in the said will mentioned, and for that pur- pose to execute all necessary instruments or deeds; [conclu- sion, see No. 407.] NO. 430. Answer to a Bill Charging Infringement of a Patent. See under title "^Patents" for form of answers setting up the various defenses to such bill. COMMON FORMS USED IN FRAMING ANSWERS. 559 No. 431. Answer to Bill to Enjoin Transfer of Patents. ^Caption.] The defendant, B. E., answering plaintiflf's bill filed herein, admits that plaintiff and defendants are citizens, as alleged; that plaintiff was a member of the partnership of J. W. & Son, and is now owner, by assignment, of all claims belonging to said plaintiff on March i, ; that this defendant was in the employ of said partnership as a traveling salesman prior to , excepting a part of the months of June, July and August of , for which time the said defendant received no pay for services rendered the plaintiff, excepting his actual expense, which was not according to the contract entered into when the defendant was employed by said partnership, and for the services rendered the plaintiff by this defendant during said enforced vacation, the plaintiff agreed on or about , verbally, that this defendant should receive full pay from to , and should have such time to look after his, this de- fendant's personal business as the said business required, but was to hold himself in readiness to attend to the wants of any prospective customer of the plaintiff, which this defendant did at all times; that on the day of , at his own expense and while attending to his own personal business, this defendant did obtain said option and some time thereafter did inform plaintiff that he had obtained said option; that this defendant did not accept the terms of said option and pur- chase said patent before his employment with the said part- nership terminated, and as his own personal business and at his own personal expense, this defendant did sell a shop-right under said patent to C. W. & Co., of , for dollars and has retained the proceeds thereof, that thereafter this de- fendant formally accepted the terms of said option and ob- tained said patent to be assigned to himself, paying therefor with his own money and caused said assignment to be record- ed in the Patent Office; that this defendant did procure the 560 SUITS IN EQUITY. assignment of a shop-right to manufacture under said patent leaving blank the name of the grantee and the place where said license was to be exercised ; that he had issued two other assignments of shop-rights, which he controls only through the friendship of parties to whom they were issued; that he had issued to the defendant, J. E., a shop-right of the kind alleged in the bill, and that this defendant has refused and still refuses to assign said patent to the plaintiff. The other allegations of plaintiff's said bill, together with all qualifica- tions of the above admissions as set forth in said bill this de- fendant denies. And further answering plaintiff's said bill, this defendant says, that on or about the day of , the said partner- ship of J. W. & Son, having represented to this defendant, that they were unable to pay him the salary, which by the terms of the contract under which he was employed by them they should pay, and this defendant, being unwilling to continue in their service at a less salary, it was agreed between the said partnership and this defendant, that his employment should terminate on the first day of January, 1897, and about the said date, one W. W., being then in the employ of said partner- ship, as foreman, and because of a threatened reductioji of his salary, likewise having determined to quit the employment of said partnership, said W. W. and this defendant entered into an agreement, looking to the organization of a company for the manufacture of machinery in which they desired to use the invention covered by said patent ; that the said W. W. re- quested this defendant to visit the said inventor and patentee and to procure from him a shop-right under the said patent, or an assignment of the said patent, for the purpose of using the same in the manufacture of said machinery; that on the day of , pursuant to the said agreement and request of the said W. W., and in preparation for beginning the manu- facture of said machinery, this defendant at his own expense went to see said inventor, and likewise at his own expense pro- COMMON FORMS USED IN FRAMING ANSWERS. 561 cured said option to be issued to himself ; that up to said time neither plaintiff nor any other member of said partnership had directed, requested or suggested that this defendant should procure an option for the purchase of said patent, or procure any interest in the same for said partnership; that thereafter and about the day of , this defendant received a let- ter from plaintiff, bearing date of , in which plaintiff asked this defendant whether he had seen the said inventor and patentee, and stated that he had written to this defend- ant about the said matter nearly two months previously; and this defendant says, that said letter contained the first informa- tion to him from plaintiff or any other member of said part- nership that said partnership desired him to procure any interest in the said patent, for said partnership, and this de- fendant believes and alleges the fact to be, that plaintiff had at that time learned that this defendant had already obtained said option, and thereupon wrote said letter to this defend- ant, falsely pretending that he had theretofore, by letter, re- quested this defendant to obtain said option for said partner- ship. This defendant further says, that he obtained the said pat- ent and the said option for the purchase of the same, at his own expense, and in good faith with the view of organizing a company for the manufacture of machinery, in which he and the said W. W. desired to use the said patented invention, after the termination of his employment, and that of said W. W., by the said partnership. Wherefore, this defendant asks that the plaintiff's bill may he dismissed at his cost, and that this defendant's title to and ownership of the said patent be quieted against all claims by the plaintiff. B. E. ^Verification. See form No. 408.] 562 SUITS IN EQUITY. EXCEPTIONS. NO. 432. For Insufficiency (i). In Equity. Between W. W., J. W., and C. L., on betalf of themselves and all other the creditors of J. B., who shall come in and contribute to the expense of this suit, Complainants (2), and J. G. and T. B., Defendants. An exception taken by the said complainants to the in- sufficient answer of the said defendants. For that the said defendants have not, to the best of their knowledge, remembrance, information, and belief, answered and set forth a full, just, and true inventory and account of all and singular the goods and chattels, personal estate, and effects whatsoever which J. B., the younger, in the said bill named, was possessed of, entitled to, or interested in, at the time of the date of the indenture in the said bill mentioned, and all the particulars whereof the same consisted, and the quantities, qualities, full, real, and true values thereof, and of every such particulars; and whether all or some and which of such particulars have not, and when, been pos- sessed or received by, or come to the hands of them, the defendants, or the one, and which of them, or some, and what person or persons, by their or either of their order, or for their or either of their use, and how, and in what man- ner, and when and where, and by and to whom, and for how much the same and every or any, and what part thereof has been sold and disposed of; and .'whether any, what parts thereof, and to what value or amount now remain undis- posed of, and what is become thereof. In all which particulars the said complainants except to the answer of the said defendants as evasive, imperfect, and EXCEPTIONS. 563 insufficient, and humbly pray that the said defendants may be compelled to put in full and sufficient answer thereto. R. X., of Counsel for Complainant. (i) The only mode of taking advantage of defects in an answer is by written exceptions. I Daniell, Ch. PI. & Prac. (Perkins' Ed.) p. 770, note I. Demurrer to an answer is unknown in equity pleadings, Banks vs. Man- chester, 128 U. S. 250, 9 Sup. Ct. 36, 32 L. Ed. 42s ; Grether vs. Wright, 23 C. C. A. 500, 75 Fed. 742. Nor can exceptions serve the office of a de- murrer. The only way by which the sufficiency of an answer on its merits as a defense to the case in the bill can be tested is by setting the case for hearing on bill and answer. The office of an exception is to raise the ques- tion whether the averments and denials of the answer are sufficiently re- sponsive to the allegations of the bill. Walker vs. Jack, 88 Fed. Rep. 576, 31 C. C A. 462; Shiras, Eq. Prac. U. S. Courts, 59. There are three grounds of exception to an answer: (i) It may contain matter which is scandalous, (2) it may contain matter which is imperti- nent, — that is to say, it may go outside of the bill to state some matter not material to the case of the defendant; (3) it may be objectionable on the ground of insufficiency in not answering fully the statements and allega- tions of the bill. Story, Eq. PI. §§ 861, 863. In cases of alleged impertinence the court will not order the matter al- leged to be impertinent to be struck out unless in cases in which the im- pertinence is very fully and clearly made out, for if it is erroneously struck out, the error is irremediable; if it is not struck out, the court may set the matter right in point of costs. Story Eq. PI. § 267 ; Davis vs. Crepps, 2 Young & C. Ch. 443. Under the rule the exception as to scandal and impertinence in an answer must be disposed of before its sufficiency can be considered (Story, Eq. PI. § 867;) and, if a reference for insufficiency is ordered before this is done, the right of exception for scandal and impertinence is waived (Id.). Exceptions to an answer for insufficiency can only be sustained when some material allegation, charge, or interrogatory in the bill is not fully answered. When the matter of the bill is fully answered and the de- fendant sets up new matter, which is irrelevant, and forms no sufficient grounds of defense, the plaintiff may except to the answer for impertinence. He cannot except to its insufficiency. Stafford vs. Brown, 4 Paige, 88. The principal object of exceptions to an answer for insufficiency is to ob- tain more perfect discovery from defendant under oath. Stafford vs. Brown, supra. So exceptions do not lie in New York to an answer for in- sufficiency when the bill waives the oath of the defendant, because such answers are not evidence (McCormick vs. Chamberlin, ir Paige, 543;) and the same rule prevails in Massachusetts and in New Hampshire (i 5^4 SUITS IN EQUITY. Daniell, Ch. Prac. 770, notes i, 3, and 771. In the case at bar an answer under oath is expressly waived. If such exceptions be sustained, the only course is leave to amend the answer. Barrett vs. Twin City Power Co., ill Fed. Rep. 45. It is not matter of exception to an answer that it is silent concerning an immaterial fact, or one which, if admitted, could not tend to support the complainant's equity. Hardeman vs. Harris, 7 How., 726. Exceptions for impertinence are only allowed when it is apparent that the matter excepted to is not material or relevant, or is stated with needless prolixity. If it may be material, the exception will not be allowed, as that would leave the defendant without remedy; but the allegation excepted to will be allowed to remain in the answer, and the eflfect thereof, if found to be true, determined on the final hearing. Chapman vs. School District No. i, Deady (U S.) 108. (2) See note to No. 207. No. 433. Another Form of Exceptions to Answer for Insufficiency. [Capfzon."] Exceptions taken by the above-named plaintifiF to the answer of the defendant [or, if more than one defendant, of the defendant C. D.] for insufficiency. First exception. For that the said defendant has not in and by his said answer, according to the best of his knowl- edge, remembrance, information, and belief, answered and set forth whether, etc. Second exception. For that the defendant has not in and by his said answer, in manner aforesaid, answered and set forth whether, etc. [And so with respect to the other exceptions, using the words of the interrogatory not answered^ In all or some of which particulars the said plaintiff is ad- vised that the said answer of the defendant is evasive and insufficient, and ought to be amended, and humbly prays the same may be amended accordingly. R. X., of Counsel for Plaintiff. EXCEPTIONS. 565 No. 434. An Exception Taken to the Answer of a Defendant to an Amended Bill. {^Caption.] An exception taken by the said plaintiff to the insufficient answer of the said plaintiff's amended bill of complaint. For that the said defendant has not, to the best and ut- most of his knowledge, remembrance, information, and be- lief, set forth the documents by which the modus or compo- sition in the said defendant's former answer alleged and in- sisted upon is made out. In which particular the said plaintiff excepts to the answer of the said defendant as evasive, imperfect, and in- sufficient, and humbly prays that the said defendant may be compelled to put in a full and sufficient answer thereto. R. X., of Counsel for Plaintiff. See notes to No. 432. No. 435. Exceptions for Scandal (i), \^Caption\. Exceptions for scandal taken by the above-named defend- ant A. B. [or, plaintiff, etc.] to the bill of complaint of the above-named plaintiff [or, to the answer of the above-named defendant A. B. to the bill of complaint of the said plaintiff] filed in this cause on the day of . [Describe the particular passages alleged to be scandalous ; as thus/] First exception. For that the whole of the paragraph of the said bill [or, answer] [here introduce language to identify the paragraph referred to\ is scandalous. Second exception. For that the passage commencing with the words "The said person," in the line, and ending with the words "which he knew," in the line, of the 566 SUITS IN EQUITY. paragraph of said bill [or, answer] [identify the paragraphia is scandalous. In all which particulars this exceptant excepts to the said bill \or, answer] as scandalous ; and humbly insists that the said scandalous matter be expunged therefrom. R. X., of Counsel for Plaintiff. (i) Words, however disparaging or abusive, are not scandalous un- less they are also "impertinent," or, in other words, irrelevant, and put in for the mere purpose of scandal. Henry vs. Henry, 98 Am. Dec, 87. All scandalous and impertinent matter in an answer to a bill will be expunged. Sommers vs. Torrey, 28 Am. Dec, 411. But pertinent matter, though scandalous in itself, is not to be so treated. Price vs. Tyson, 22 Am. Dec, 279. What matters may be struck out of an answer as scandalous, imma- terial, etc, see Griswold vs. Hill, i Paine (U. S.) 390; Langdon vs. Goddard, 3 Story (U. S.) 13; Sargent vs. Larned, 2 Curt. (U. S.) 340. No. 436. Exceptions to Master's Report. See form No. 548, post. No. 437. Exceptions to a Libel. See under title " Admiralty." No. 438. Notice of Hearing of Exceptions to Answer (i). [Caption.^ To the Above Named Respondent and to Messrs. R. & Y., its Solicitors : You will each please take notice that the exceptions of the above named complainants to the answer of the respondent in the above entitled action will be called up for hearing and EXCEPTIONS. 567 determination in the above named court, before the Hon. , judge of said court, at the rooms in which said court is held in the , in the city of , in the state of , on the day of , A. D. 19 — , at the hour of in the forenoon of said day, or as soon thereafter as counsel can be heard. Dated this day of , 19 — . X. & X., Solicitors for Complainant. (I) Eq. R. 63. 568 SUITS IN EQUITY. DISCLAIMER. NO. 439. General Form (i). [^Caption.^ The disclaimer of the defendant, C. D., for the bill of com- plaint herein. This defendant, saving and reserving to himself any and all advantages that might be taken by exception to said bill, says that he does not know that he, the said C. D., to his knowledge and belief, ever had, nor did he claim pr pretend to have, nor does he now claim any right, title, or interest of, in, or to the estates and premises, situated {describe thetri], in the said bill of complaint set forth, or any part thereof; and this defendant disclaims all right, title, and interest in and to the said estate and premises in [name situation], in the said bill of complaint mentioned, and every part thereof; and this defendant prays leave to be dismissed with his reasonable costs and charges in this behalf most wrongfully sustained. CD. Y. & Y., Solicitors for C. D. {Verification. See No. 408.] (l) See Beach's Mod. Eq. Prac, Sec. 283; Foster's Fed. Prac, Sec. 155 ; Bates Fed. Eq., Sees. 305 and 306. REPLICATION. 569 REPLICATION. No. 440. General Form (i). \_Caption.] The replication of the above-named plaintiff to the answer of the above-named defendant. This replicant, saving and reserving to himself all and all manner of advantage of exception which may be had and taken to the manifold errors, uncertainties, and insufficiencies of the answer of said defendants, for replicatiou thereunto sayeth that he does and will ever maintain and prove his said bill to be true, certain, and sufficient in the law to be answered unto, by said defendants, and that the answer of said defendants is very uncertain, evasive, and insufficient in the law to be replied unto by this replicant; without that, that any other matter or thing in the said answer contained ma- terial or effectual in the law to be replied unto, and not herein and hereby well and sufficiently replied unto, confessed, or avoided, traversed, or denied, is true ; all which matters and things this replicant is ready to aver, maintain, and prove as this honorable court shall direct, and humbly as in and by his said bill he has already prayed. X. & X., Solicitors for Plaintiff. (1) See 4Stli and 66th Rules in Equity; Beach's Modern Equity Prac, Sec. 480 and ante; Barton's Suits in Equity, 144 and 145; Story's Equity Pleadings (loth ed.), Sec. 878 ; i. Daniels Ch. Pr. (sth ed.), 830 et seq. The answer will be taken as true if no replication is filed (Trout 11s. Emmons 81 Am. Dec, 326); and no evidence can be given by the com- plainant to contradict it. Gallagher, vs. Roberts, i Wash., 320 ; Pierce vs. West, Peters C. C, 351. Under Rule No. 66 the plaintiff must reply to the answer of every defendant, when sufficient, without reference to the state of the cause 57° SUITS IN EQUITY. or of the pleadings in regard to any other defendant. The replication must be a general one, as Rule 45 abolishes special replications. Cole- man vs. Martin, 6 Blatchf., 291. Matter pleaded by special replication formally must now be pleaded by amending the bill. Southern Ry. Co. vs. U. S. 168, U. S. 55-58; Borrks vs. Stolley, No. 1963 Fed. Cas., 4 McLean, 275, I. Fish. Pat. Cas., 137; Dupont vs. Mussey, No. 4185 Fed. Cas., 4 Wash. C. C. 128. Where special matter is pleaded in the replication it may be considered as surplusage. Dupont vs. Mussey, No. 4185 Fed. Cas., 4 Wash. C. C 128; Wren vs. Spencer Optical Mfg. Co., 5 Ban. & Ard. 61, 180 G. 857, No. 18062 Fed. Cas. Where a plaintiff, instead of filing the general replication, sets down the cause for hearing upon bill and answer, this is an admission that everything well pleaded in the answer is proved. Parton vs. Prang, 2 Pat. Off. Gaz., 619. . Where the statute of limitations is relied on as a bar, at law or in equity, and the plaintiff desires to bring himself within its savings, he Inust set forth the facts specially in his replication, or by an amend- ment of his bill ; or the existence of the exception, not being an issue between the parties, the court can take no notice of any evidence to es- tablish it. Piatt vs. Vattier, 9 Peters, 405, and note to Banks' ed.; af- firming, I McLean, 146 ; Taylor vs. Benham, 5 How., 233. S. P., Mars- teller vs. McClean, 7 Cranch, 156. A departure in pleading is not allowed in equity. If the answer re- quires a new case to be made, it can not be done in the replication, but must be by an amendment of the bill. Vattier vs. Hind, 7 Peters, 252; reversing, I McLean, no. When a cause is submitted for final decree upon the pleading, and evidence, and it turns out that no replication has been filed to the an- swer, but that' the evidence has been taken as if it had been filed, the court will try the case on its own merits, notwithstanding the want of a replication, or will allow one to be filed instanter. Jones vs. Britten, I Woods, 657. A decree under Rule 38, dismissing the bill because of failure to re- ply to a plea, or set it down for argument, is not a bar to a subsequent action. Keller vs. Stolsenback, 20 Fed. Rep., 47. REPLICATION. 57^ No. 441. A Short Form of Replication. [Caption.] The plaintiffs in this cause hereby join issue with the de- fendants [naming them aW], and will hear the cause, on bill, answer and proofs against the defendants. ( i ) X. & X., Solicitors for Plaintiff. (i) This form of replication was held to be sufficient under equity rule 66 by the Supreme Court in Clements vs. Moore, 6 Wall. 303, 310. 572 SUITS IN EQUITY. NOTICES, MOTIONS, ORDERS DECREES, Etc. No. 442. Motion for Additional Security for Costs. [Caption.] Now comes the defendant and moves the court for an order requiring the plaintifif to file a bond as security for costs herein. Y. & Y., Solicitors for Defendant. No. 443. Cost Bond. For form of bond, see No. 58. No. 444. Appearance. For form for appearance, consult Nos. 70, 71 and 72. See also 17th Rule in Equity. No. 445. Order Associating Counsel for the Defendant. [^Caption.] Now comes defendant, the C. & D. Railway Company, by R. Y., its counsel, and states to the court, on the hearing here- in, that F. L. has been associated by said defendant as one»of its counsel in this cause, and moves that the proper entry be made thereon. It is ordered that the clerk of the court make minute of the same, and that said F. L. is so associated of record as of counsel to said defendant in this cause. NOTICES, MOTIONS, ORDERS, ETC. 573 No. 446. Order to Take Bill Pro Confesso (i;. The subpoena in the above entitled cause having been re- turned, which return has been filed, and it appearing there- from that the said subpoena was duly served on C. D., the defendant herein, and no appearance having been entered on the part of said defendant, or demurrer, or plea, or answer filed, although such appearance should have been entered or pleading filed on or before the day of ; therefore, on motion of R. X., solicitor for the plaintiff, it is ordered and decreed that the bill herein be taken pro confesso as to said defendant. Dated . (i) See iStli Rule in Equity. No. 447. Consent to Take Bill Pro Confesso. [^Caption.^ Whereas the bill in equity in the above entitled cause was filed in this court on the day of , and a subpoena issued and duly served on me in this cause as required by law [or, I hereby waive service of subpoena and enter my ap- pearance herein], and I do not desire to defend said action; therefore I hereby consent that the said bill be taken pro confesso, and I hereby admit [state admission] as charged in said bill [and I hereby consent that said injunction may issue in said action out of this court as prayed for in said bill without any further proof being made or given in said action], and the plaintiff may attach this stipulation and confession to the said bill, and the same to be binding and conclusive upon me, this defendant. C. D. 574 SUITS IN EQUITY. No. 448. Decree Pro Confesso (i). [Caption.] It appearing to the court that the bill in equity in the above entitled, cause was filed in this court on the day of , 1894, and that a subpcEna was issued and duly served on the defendant herein ; that no appearance has been entered on the part of the defendant, or demurrer, or plea or answer filed, and that an order taking the said bill pro confesso was duly entered on the day of in the order-book, and that no proceedings have been had or taken by said de- fendant since such order was entered ; now, therefore, more than thirty days after entering said order as aforesaid, to wit, on the day of , it is hereby ordered, adjudged, and decreed \insert the finding of the court?\ (i) A decree taken /ro confesso does not become absolute until the next term of court. See 19th Rule in Equity. No. 449. Decree Pro Confesso Sustaining Patent. See under title " Patents." No. 450. Motion to Vacate a Decree pro Confesso. \Caption.\ In this cause the defendant, C. D., comes, by his solicitors, and moves the court to set aside the decree pro confesso en- tered herein against him on . First. Because said decree pro confesso was taken without service of process on said C. D. Second. Because a demurrer had been filed by said C. D. through his solicitors to the dependent foreclosure bill filed against said C. D. and others in this cause, and said de- NOTICES, MOTIONS, ORDERS, ETC. 575 murrer has never been heard by the judges of this court, or any action taken thereon. Y. & Y., Solicitors for C. D. No. 451. Order Vacating a Decree pro Confesso. \_Caption.'] The motion of the«defendant, C. D., to the bill of A. B., to set aside the decree pro confesso entered against him on the day of , is on argument and consideration allowed, and it is ordered that the decree pro confesso be set aside, and the case stand as before said erroneous entry. No. 452. Order for Attachment to Compel Answer (i). \_CaJ>ti'on.] The subpoena issued in the above cause having been re- turned, which return has been filed, and it appearing there- from that the said subpoena was duly served on C. D., the defendant herein, and no appearance having been entered on the part of the said defendant, therefore, on motion of R. X., solicitor for the plaintiff, it is ordered and decreed that an attachment issue against the said C. D. (i) See i8th Rule in Equity. No. 453. Attachment to Compel Answer (i). The President of the United States of America to the Marshal of the District of , Greeting : You are hereby commanded that you attach C. D., if he may be found in your district, and bring him forthwith [or. 576 SUITS IN EQUITi. on the day of , etc.] personally before the judge of the circuit court of the United States for the district of , in the circuit, held at \name place of holding court\ in the city of , in the said district, to answer foi certain contempts in not obeying our writ of subpoena to him directed, and on him duly served, commanding him to appear before the said circuit court, in equity, on the \as in subpoenal, to answer a bill of complaint exhibited against him in the said court by A. B., and further to perform and abide such order as our said court shall make in this behalf; and you are further commanded to detain him in your custody until he shall be discharged by the said court. And have you then and there this writ. [^Add teste, as in No. 56.] (i) See i8th Rule in Equity. No. 454. Prsecipe for Copy. [^Caplion.] B. R., Clerk of said Court. Please prepare a certified copy of the bill of complaint {or, answer, or other paper, as may be, naming it\ herein. X. & Y., Attorneys for . No. 455. Order to Stand Over to Add New Parties. \CapHon.\ This cause coming on to be heard this day of , and counsel for the respective parties having been heard, and it appearing to the court that E. F. and G. H. are necessary parties to this cause, it is ordered that this cause do stand over, to the end that the plaintifi" may make the said E. F. and G. H. parties thereto, either by amendment or supple- mental bill, as he may be advised. NOTICES, MOTIONS, ORDERS, ETC. 577 No. 456. Order to Stand Over to Supply Proofs. \Caption.'\ This cause coining on to be heard' this day of , and counsel for the respective parties having been heard, and it appearing to the 'court that the plaintiff has omitted to introduce proof of [here state the substance of what is omitted^, it is ordered that this cause stand over, to the end that the plaintiff may examine witnesses to prove [state what plaintiff has leave to prove\. No. 457. Petition by Infant for Appointment of a Guardian ad Litem. [Caption and address^ The petition of C. D., of , the [or^ a] defendant in this suit, respectfully shows that your petitioner is an infant over the age of fourteen years, to wit, of the age of fifteen years and upwards; that the bill in this cause was filed against your petitioner [and others'] for the foreclosure of a mortgage alleged to have been executed by the father of your petitioner (who is now deceased) in his lifetime, to the plaintiff, and praying for a sale of the mortgaged premises. And your, petitioner further shows that she claims an interest in the said mortgaged premises as heir at law of her father ; and that she has been served with a subpoena in said cause, requiring her to appear and answer the said bill, returnable on the day of instant. Your petitioner therefore prays that L,. M., a solicitor of this court, residing in , may be appointed the guardian ad litem of your petitioner, to appear and defend this suit on her behalf. And your petitioner will ever pray, etc. 578 SUITS IN. EQUITY. No. 458. Petition by Plaintiff for Appointment of Guardian ad Litem for an Infant Defendant. [^Commence as in preceding form.] The petition of A. B., the plaintiff in this suit, respect- fully shows that the bill in this suit was filed against the defendant to foreclose a mortgage executed by the father of said defendant (who is now deceased) in his lifetime, to your petitioner, and praying for a sale of the mortgaged premises ; and that the said defendant claims an interest in the said prem- ises as heir at law of her father. And your petitioner further shows that the said C. D. resides in , and is, as he is in- formed and believes, an infant over the age of fourteen years, to wit, of the age of fifteen years and upwards. And that on the day of , a subpoena in this cause was duly served on the said C. D., requiring her to appear to and answer the said bill, returnable on the day of last. And your petitioner further shows that although more than days have elapsed since the appearance day mentioned in said subpoena, no guardian ad litem has as yet been appointed for such infant, or applied for by her or any person on her behalf, to the knowledge or belief of your petitioner. Your petitioner therefore prays that L,. M., the register of this court, may be appointed guardian'aa? litem of such infant defendant, to appear and defend this suit in her behalf. And your petitioner, etc. No. 459. Petition for the Appointment of a Guardian ad litem. Notice and Consent to Such Appointment. \Caption.\ To the Judge of the Circuit Court of the United States for the District of , Division. Your petitioner, R. S., would respectfully represent to the court that S. B., one of the above named defendants, is a NOTICES, MOTIONS, ORDERS, ETC. 579 minor, under the age of twenty-one years, as your petitioner is informed and verily believes. Your petitioner further represents that said S. B. is a resi- dent of said District of , and that it is necessary that a guardian of the person and estate of said minor be appointed in said cause. Your petitioner therefore prays that a day be fixed for the hearing of said petition, and due notice thereof be given to said complainant or his solicitor, and that D. W., or some other suitable person, be appointed guardian ad litem of the person and estate of said minor, as aforesaid in said cause, ac- cording to the provisions of the statute in such case made and provided. R. S., State of , Attorney for S. B. County of , ss. : On this day of , before me personally came R. S., the petitioner named in the foregoing petition, who being by me duly sworn did depose and say that he has heard read the foregoing petition by him subscribed, and knows the contents thereof, and that the same is true according to the best of his knowledge and belief. J. R., Notary Public, County, . To R. X., Esq., Solicitor for Complainant — Sir: Please take notice that the foregoing petition was brought on for hearing before Hon. H. S., judge of the Circuit Court of the United States for the District of , Di- vision, in Equity, on the day of June, , at lo o'clock in the forenoon of said day, or as soon thereafter as counsel can be heard. Yours, etc., R. Y., Dated . Solicitors for Defendants. I hereby consent to the appointment of D. W. as guardian ad litem of S. B. R. X., Solicitor for Complainant. Dated . 580 SUITS IN EQUITY. No. 460. Order Appointing Guardian ad litem by Consent. [Caption.] This application having come on to be heard upon the peti- tion of R. S., representing that S. B., one of the above named defendants, under the age of twenty-one years, and asking for the appointment of a guardian ad litem of the person and estate of said minor in said cause, and R. X., solicitor for said complainant, having consented thereto, in writing, it is or- dered that D. W. be, and he is hereby appointed by this court as guardian of the person and estate of said S. B., in said cause. No. 461. Answer of Infant by Guardian ad litem. [Caption.] Answer of defendant, C. D., an infant, under the age of twenty-one years, by C. S., her guardian ad litem, to the bill of complaint of A. B. herein. This defendant, C. D., answering by her said guardian ad litem, C. S., states that she is an infant of the age of seven- teen years, and she therefore submits her rights and interests in the matters in question in this cause to the protection of this honorable court, without this, that any matter or thing ma- terial for her to make answer to and not herein answered, avoided and denied, is true to the knowledge and belief of said defendant. And she prays to be hence dismissed with her reasonable costs and charges in this behalf sustained. CD., By C. S., Guardian ad litem. NOTICES, MOTIONS, ORDERS, ETC. S8l No. 462. Motion to Amend Bill by Adding Defendant (i). \_Caption.] Comes now the plaintiff above named, and moves the court that he may have leave to amend his bill by adding the said E. F., a defendant thereto with apt words to charge him. R. X., Attorney for Plaintiff, (i) Equity Rule 47: All persons should be joined, who are so related to the subject matter of the suit that their rights must be passed upon by the court in reach- ing a final decree. Coison vs. Millaudon, 19 How. 113; Con. Water Co. vs. Babcock, 75 Fed. Rep., 76 Fed Rep. 243; Kelley vs. Boettcher, 8s Fed. Rep. 55. No. 463. Motion to Amend Bill. [Caption.] Comes R. X., solicitor for the complainant, moves the hon- orable court to amend the original bill in this cause by insert- ing in the first paragraph of said bill after the word Ken- tucky, and before the word for, the following : " And other- wise complying with the statutory laws of Tennessee and also the United States, regulating foreign corporation by filing an abstract of the complainant charter with the secretary of state for registration, and with the registers of each county where your complainant is engaged in business " and which is marked Exhibit " A. & B " hereto. No. 464. Order Permitting an Amendment to Bill. [Caption.] This cause came on to be hea;rd upon motion of complain- ant's counsel, before the Hon. C. D., district judge to amend 582 SUITS IN EQUITY. the complainant's bill in the first paragraph after the word Kentucky and before the word for, and insert the following: " And otherwise complying with the statutory laws of Ten- nessee regulating foreign corporations by filing an abstract of the complainant's charter with the secretary of state for regis- tration, and with the registers of each county where your com- plainant is engaged in business," and also the United States, The court having considered the order, and being of the opin- ion that the complainant has a right to amend its bill as set out above, does therefore order and decree that the complainant be permitted to amend its bill as set out. This order was granted at Chambers in , on the , and is entered now for then. No. 465. Motion to File a Second Amended Bill. {Caption.l The complainant moves the court for leave to file a second amended bill, wherein a conveyance to the defendant, C. D. by her children, of the real estate in the original bill described, is alleged, said allegation having been omitted by clerical error in the original bill. X. & X., Solicitors for Complainant. No. 466. Order Granting Leave to File Amended Bill and for De- murrer to Original Bill to Stand as to Amended Bill. {Caption.l . This cause coming on to be heard on motion to file amended bill, tendered herein . The court now being fully ad- vised, orders and adjudges that said amended bill be and the same is now filed. NOTICES, MOTIONS, ORDERS, ETC. 583 It is further ordered that the ^demurrer heretofore filed herein to the bill, be and the same is now filed as a demurrer to the amended bill, and the cause is submitted on said demurrer. Plaintiff is given twenty days in which to file brief. No. 467. Order for Leave to Amend Bill. [Caption.l Pursuant to agreement in open court, it is ordered that the complainant, the A. B. Trust Company of the city of , be and it hereby is given leave to amend its bill of complaint herein as to the defendants, the Second National Bank, of and H. Z. And now comes the said A. B. Trust Company of the city of , and files an amendment to its bill pursuant hereto, and it is ordered that each of the defendants, the Second Na- tional Bank of and H. Z., file their answer, demurrer or plea thereto on or before the March rule day, and on failure so to do said bill may be taken pro confesso against them. No. 468. Amendment to a Bill (i). [Capiz'on.] And now comes the plaintiff, and, with leave of the court first had and obtained, amends his bill of complaint herein as follows: Ftrsi. In the sixth line of the second paragraph of said bill, after the word "thereto," insert [here set forth what is to be inserted^. Second. At the end of the fifth paragraph add the follow- ing: \here insert the additional matter']. Third. Erase the words [set them forth'], in the third line of the tenth paragraph [continue in like manner to set forth the new matter]. R. X. Solicitor for Plaintiff. 584, SUITS IN EQUITY. (i) The amendment should not be made by interlineations and erasures in the original bill, but by filing the same on separate paper ; and the amended bill should state no more of the original bill than is necessary to make intelligible where the new matter is to be inserted. See also 28th, agth, 30th, and 60th Rules in Eq,uity. No. 469. Amendment of Bill of Complaint so as to Make it Responsive to the Answer (i). ICaption.], To the Judgps of the Circuit Court of the United States for the District of . The A. B. Company of the city of , by leave of court, this day granted, further amends its bill of complaint so that the same shall be responsive to the matters set up in the an- swer of the defendant, C. D., by showing to the court as follows — upon information and belief: [Here insert new matter and conclude with same prayer as in original bill.'] (i) A special replication is not permitted by equity rule 45. Matter so pleaded formally must be set up by amending the bill. Southern Ry. Co. vs. U. S. 168, U. S. S5-S8; Brooks vs. Stolley, No. 1963, Fed. Cas. 4, McLean 275, i Fish. Pat. Cas. 137 ; Duponti vs. Mussey, No. 4185 Fed. Cas., 4 Wash. C. C. 128. NO. 47a Motion by Plaintiff to Dismiss His Bill with Costs (i). {^Caption.'] Comes now, the above named A. B., complainant, and shows the court that having exhibited his bill in this honorable court against the above-named defendant, who has appeared (and put in his answer) thereto, this complainant is now ad- vised to dismiss his said bill. This complainant therefore humbly prays, that the said bill NOTICES, MOTIONS, ORDERS, ETC. 58$ may stand dismissed out of this court, with costs to be taxed by the proper taxing master (or by the clerk of this court). R. X., Attorney for Plaintiff. (l) Daniell's Ch Prac, Sth Am. ed. 790. No. 471. Motion by Party late an Infant, on Coming of Age, to Dismiss Bill with Costs, before Decree (i). \_Caption.] Comes now the plaintiff, above-named, late an infant, but now of full age, and shows to the honorable court: First. That this plaintiff when an infant, by C. B., his next friend, filed his bill in this cause against the defendants, to which they appeared ; but no decree has yet been made therein. Second. That this plaintiff has now attained the age of twenty-one years and is not desirous to proceed any further in the said cause. Wherefore this plaintiff now moves the court that his said bill may stand dismissed out of court ; with costs to be paid by him to the said C. D. and to the defendants. R. X., Attorney for Plaintiff. No. 472. Leave to File a Cross-Bill (i). [Caption.] Upon application of the First National Bank of -^ — , by its solicitor, L. M., Esq., leave is granted to file its certain cross bill herein, and the same is filed. (i) A cross bill is regularly filed at time the answer is due and before replication, and leave of court is not then necessary. Leave should be denied to file a cross bill that involves the taking of new evidence after case has been heard on proofs. Rogers vs. Riessner, 31 .586 SUICS IN EQUITY. Fed. Rep. 591; but it may be granted- when no new testimony is required, Neal vs. Foster, 34 Fed. Rep. 496. The granting or refusing leave to 6le a cross bill after time for answer is discretionary with trial court. Indiana, etc. R. Co., 109 U. S. 168; Mor- gan's Co. vs. Texas Cent. R. Co., 137 U. S. 171, (202.) No. 473. Motion to Withdraw a Plea of Demurrer (i). \Caption.'\ Comes now the defendant, C. D., and shows the court that the plaintiff having exhibited his bill in this honorable court against this defendant, this defendant put in his plea (or de- murrer) thereto, since which he is advised to make other de- fense to the said bill. This defendiant therefore moves the court that he may be at liberty to withdraw his plea (or de- murrer) upon payment of costs. And, etc. R. Y., Attorney for Defendant. (i) Daniell's Ch. Prac. sth Am. ed., pp. S9S-6. No. 474. Order to Withdraw Answer to Have it Sworn to by De- fendant. [^Caption.] In this cause, it is by consent ordered that defendants be permitted to withdraw their answer heretofore filed herein on the day of , for the purpose of having said an- swer sworn to by defendant, R. M., and that when the same is so sworn to, it may be filed. NOTICES, MOTIONS, ORDERS, ETC. 587 No. 475. Motion to Amend Answer (i). ICaption.] Now comes C. D., the intervening and answering defend- ant herein, and moves the court for leave to amend, by inter- lineation, his answer filed herein on the day of > 19 , as follows: First. By striking out the words and figures, etc., in line and pages and inserting instead thereof the words and figures following, etc. R. Y., Attorney for Defendant. (i) Eq. R. 60. No. 476. Motion for Leave to Amend an Answer by Consent (i). [Caption.] Now comes the defendant, C. D., and shows to the court: First. The plaintiff lately filed his bill in this cause against this defendant, who appeared thereto, and on the day of , 19 — , filed his answer to the said bill. Second. This defendant has since discovered the mistakes hereinafter mentioned in his said answer and desires to cor- rect the same. And, therefore, moves the court ior leave by consent of the plaintiff to amend his said answer in the respects follow- ing; namely [state the proposed amendments']. R. Y., Attorney for Defendant. (i) Eq. R. 60. 588 SUITS IN EQUITY, No. 477. Motion to Amend Answer with Notice Accepted. l^Caption.'] Now come the defendants in the above-entitled cause, and move the court for leave to file the above and foregoing amendment nunc pro tunc as of the date of the filing of the original answer herein. R. Y., Of Counsel for Defendants. Messrs. X. & X., Solicitors for Complainant: Gentlemen : Please take notice that upon the date of hear- ing of the above-entitled cause, and prior to such hearing, I shall submit the foregoing motion for leave to amend the answer. R. Y., Of Counsel for Defendants. Dated . Service of the above and foregoing motion and notice ac- cepted, and the receipt of a copy thereof and of the amendment referred to therein acknowledged, at , this day of . X. & X., Counsel for Complainant. No. 478. Order Granting Leave to File Amended Answer and Fixing Time for Testimony. ^Caption.] The above-named cause coming on this day of , to be heard on the motion of the defendant for leave to file an amended answer herein, instanter, and for extension of the time to file testimony to , and the court having heard the evidence adduced on said motion, and being fully advised in the premises, does hereby grant said motion. NOTICES, MOTIOl^B, ORDERS, ETC. 5^9 It is therefore ordered by the court that the defendant be, and he is hereby, granted leave to file his amended answer in the above entitled cause forthwrith, and said defendant is here- by granted leave to file his testimony on or before October i, It is further ordered that the complainant shall have until October 15, , to file its testimony in rebuttal. No. 479. Amended Answer. ^Caption.] Now comes the above-^named defendant, C. D., and by leave of court first had and obtained, files this his amended answer to the ibill of complaint ffled herein, by adding the following paragraph after paragraph six of the answer [or by inserting after the words here state the 'place where the amendment is to he inserted'] the following [here insert the new matter and conclude as in original answer]. No. 480. Motion for Leave to File Supplemental Answer by Consent (I)- \_Caption.'] Now comes the defendant, C. D., and shows to the court : First. The plaintiff lately filed his bill in this cause, against this defendant, who appeared thereto, and on the day Of , 19 — , filed his answer to the said bill. Second. This defendant has since discovered certain mis- takes in his said answer, and desires to explain and correct the same by a supplemental answer. This defendant therefore moves the court by consent of the plaintifif, he may be at liberty on or before the day of 590 SUITS IN EQUITY. , 19 — , to file a supplemental answer to the plaintiff's bill, for the purpose of \_state what, e. g., correcting state- ments inadvertently made in his answer filed on the day of , 19 — , that he had not sold an artificial exhaust elsewhere than at his mill at W. ; and as to the number of millstones to which such machinery has been applied.] , R. Y., Attorney for Defendant. (1) Eq. R. 46. No. 481. Supplemental Answer . [^Caption.] Now comes the above-named defendant, the C. D. Mining Company, and by leave of court first had and obtained, files this, its supplemental answer, to the complaint of the plaintiff filed herein, and alleges: First. That since the commencement of the above-entitled action and the filing of the complaint therein, and since the fil- ing of the answer of this defendant therein, this defendant has purchased from the government of the United States that, certain quartz lode mining claim called the C. D., situated iit G. mining district, county, , more particularly de- scribed as follows, to wit: YHere describe property. '\ And has paid the government of the United States for said mining claim at the rate of five dollars ($5.00) per acre; and has obtained the receiver's receipt of the United States land ofiace at for the land district in which said mining claim is situated, for the sum of money so paid for said mining claim. Second. That by virtue of the said purchase and payment, and the holding of the said receipt of the receiver for the pur- chase price of the said mining claim, the defendant, the C. D, NOTICES, MOTIONS, ORDERS, ETC. 59 1 Mining Company, is now the owner of the said C. D. Mining Claim, so described as aforesaid in fee. R. Y., Attorney for Defendant. [Verification.'] No. 482. Order Extended Time to Answer. [Caption.] On application of the defendants, they are allowed thirty days from the entry of this order within which to answer the complainant's bill. No. 483. Motion to Set Plea Down for Argument (i). [Caption.] Said complainant, A. B., now comes by his attorneys, and moves the court to set down this action for argument upon the plea filed herein by the said defendant, the C. D. Com- pany on the ground that the said plea does not furnish any sufficient defense to the bill of complaint herein filed. X. & X., Attorneys for Complainant. We have notice of the above motion. Y. & Y., Attorneys for Defendant. (i) Equity rule 33. Rhode Island vs. Massachusetts, 14 Pet. 210. If the plaintiff admits the sufficiency of the plea and desires to traverse the facts stated in the plea he should file a replication and go to trial of <^he issue thus made. No. 484. Motion to Set Demurrer Down for Hearing (i). [Caption.] Now comes the complainant, by its counsel, in the above 592 SUITS IN EQUITY. entitled case, and moves the court to set the demurrer, filed by defendant herein, for argument. R. X., Counsel for Complainant, (i) See equity rule 33. No. 485. Order Setting Demurrer for Argument. ICaption.'] The hearing of the demurrer in this cause is set down for Monday, July . No. 486. Order Granting Leave to Amend Plea. [Caption.'l This cause being heard upon the motion to set down defend- ant's plea for argument and was argued by counsel upon con- sideration whereof the court is of the opinion that the con- sideration set forth in said plea is sufficiently stated, but that said plea should be more definite in relation to the terms of the contract therein set forth. Thereupon, on motion of said respondent, leave is granted to file its amended plea in twenty days from April 14, . No. 487. Order Overruling Exceptions to Bill. [Caption.] This case came duly on for hearing upon the exceptions of said defendants to said complainant's amended bill of com- plaint and was argued by R. Y., Esq., of counsel for said defendants, in support of said exceptions, and by R. X., Esq., of counsel for said complainant, in opposition thereto, and NOTICES, MOTIONS, ORDERS, ETC. 593 the premises being fully understood it is ordered by the court that the said exceptions be and the same hereby are overruled ; and that said defendants be and hereby are granted until the first Monday in September next in which to answer or demur to amended bill of complaint. No. 488. Entry of Consolidation of Suits. [Caption.] By order of court made this day of , the case of the A. B. Trust Company vs. the C. & D. Railroad Company, C. & D. et al., No. upon the docket of this court and also the case of the A. B. Trust Company vs. the E. & F. Railway Company, the C. & D. Railway Company, et al., No. upon the docket of this court, both filed on said date, were consolidated with this cause, and the orders and proceedings heretofore had in sa,id causes respectively are hereby made orders and proceedings in this cause, the consolidated cause to proceed under the title of this cause. No. 489. Order Granting Leave to Intervene (i). [Caption in main suit.] This day came E. P., by R. S., his solicitor, and moves the court forJeave to file an intervening petition in this cause, which motion Is hereby granted and such leave given upon the said petitioner giving the usual cost bond in such behalf ac- cording to the practice of the court ; and such cost bond being now given the said petition is now accordingly filed. (i) Where the property of a defendant is in the possession of the court or one of its oflScers a person having an interest in or claim against such property may ordinarily intervene in the main suit to set up his claim 594 SUITS IN EQUITY. or interest. See Savings & Trust Co. vs. Bear Valley Ins. Co., 93 Fed. Rep. 339. In such cases the court may entertain a petition by the ag- grieved person either in the form of a simple motion or by intervention pro interesse suo in the cause in which the process issued or by ancillary or dependent bill in equity and may afford such relief as right and justice require. The existence of such a power, independent of statutory juris- diction, is recognized by the Supreme Court in Freeman vs. Howe, 24 How. 450; Minnesota Company vs. St. Paul Company, 2 Wall. 609-633; Railroad Companies vs. Chamberlain, 6 Wall. 748; Krippendorf vs. Hyde, no U. S. 276; Pacific Railroad of Missouri vs. Missouri Pacific Ry. Co., Ill U. S. 505; Stewart vs. Dunham, 115 U. S. 61; Phelps vs. Oaks, 117 U. S. 236 ; Dewey vs. West Fairmount Gas Company, 123 U. S. 329 ; Gum- bel vs. Pitkin, 124 U. S. 131 ; Johnson vs. Christian, 125 U. S. 642-646 ; Morgan's Co. vs. Texas Central Railway, 137 U. S. 171. For forms of petitions see under " Receivers," No. 620 et seq. No. 490. Order Denying Application to Intervene. [Caption'.'] This day this cause came on further to be heard upon the application of S. B. for leave to file the intervening petition and the answer attached to said application, and. on the evi- dence adduced by the parties, including the ofifer made in open court at the hearing by the reorganization managers and filed herein, and was argued by counsel; and the court being fully advised in the premises finds that all and singular the allega- tions of fraud and collusion made in said proposed interven- ing petition and answer are untrue; that said E. & F. Rail- way Company, at the time of the filing of the several bills of complaint herein, was and now is insolvent; that the several defaults in the payment of interest as set forth in said bills of complaint were and are bona Ude, and that said plan of reorganization is fair and just to all interests, including those of the said S. B. in case he should choose to avail himself thereof. Therefore it is ordered and adjudged that the said applica- tion be and hereby is denied. But it is ordered that the said NOTICES, MOTIONS, ORDERS, ETC. 595 S. B. may, in case he refuse to accept said offer of said rosr- ganizatjon managers, file in this court, within ten days if he be so advised, an intervening petition for the purpose only of setting up any claim he may have to participate in the distri- bution of the proceeds of the sale hereinbefore ordered. No. 491. Motion to Assign Time within which Parties shall take Evidence. \_Caption.] Now comes the plaintiff [or, defendant] herein, and moves the court to assign a time within which the parties respectively shall take their evidence. X. & Y., Solicitors for . No. 492. An Order Assigning Time within which to take Testimony. [Caption.] The above-named cause coming on this day of , to be heard on motion of plaintiff \or, defendant] for an order to assign time within which the parties respectively shall take their evidence, and counsel being heard for the respective parties, it is hereby ordered that the plaintiff shall have until the day of ^ , 1894, within which to take his evidence in chief, and that the defendant thereafter shall have until the day of , within which to take his evidence, and that the plaintiff thereafter shall have until the day of , in which to take his evidence in rebuttal. 596 SUITS IN EQUITY. No. 493. Order Preserving Oral Testimony Taken in a Suit in Equity (I). ICaption.] The evidence in this case having been given in open court orally and taken down stenographically, and thereafter re- duced to typewriting by the stenographer, and such typewrit- ten copy having been approved as correct by the parties ; It is ordered that such typewritten copy of testimony be filed by the clerk and that it be accepted and treated in all respects as if the same had been taken before an examiner or by deposition and duly admitted in evidence, and it is or- dered that such testimony may be filed within thirty days with the same force and effect as if filed before the trial. (i) As to taking oral testimony in equity, see equity rule 67 as amended May 15, 1893. 149 U. S. 793 ; and as the necessity for preserving it, see Blease vs. Garlington, 92 U. S. i. No. 494. Stipulation to Read Depositions Taken in Another Case. The Circuit Court of the United States for the District of . A. B. vs. C. D. It is hereby agreed between the plaintififs and defendants through their respective counsel, that the depositions and ex- hibits taken and on file in action No. , in this court, en- titled S. R., plaintiff, vs. L.. M. National Bank, etc., defend- ants, may be read on the trial of the above styled action in this court, by either party and that either party may produce and read on the trial of this action such of said depositions and exhibits taken and on file in the aforesaid action of S. R. vs. NOTICES, MOTIONS, ORDERS, ETC. 597 L. M. National Bank, etc., as he or it, desires, subject to all exceptions for relevancy. And it is further agreed and stipu- lated that either party may further examine or retake in this action or further cross examine in this action any witness whose deposition on file in the aforesaid action of S. R. vs. L. M. National Bank, etc., is to be read. And it is further agreed that the reading of said deposi- tions or any of them, is to be wholly without prejudice to the rights of any of the parties herein to testify in his or its own behalf and to take further evidence. R. X., Attorney for Plaintiff. R. Y., Attorney for Defendant. No. 495. Motion to Take Additional Testimony (i). [Caption.^ Now comes the defendant, the C. D. Company herein, and moves this honorable court that this cause be re-opened for the purpose of permitting the said defendant to take new- ly discovered testimony. In support of this motion, the affi- davits of E. S. and R. T. are attached hereto and made a part hereof. R. Y., Attorney for Defendant. (i) This motion should be supported by affidavits stating the nature of the newly discovered evidence and showipg reasons for not introducing it at an earlier stage in the case. As to practice in such cases see AUis vs. Stowell, 8s Fed. Rep. 481 ; Giant Powder Co. vs. Powder Co., s Fed. Rep. 197- No. 496. Order to Re-open Case and Take Further Testimony (i). ^Caption.] On reading and filing the defendants' motion, and the affi- davits of E. S. and R. T., thereto annexed, and after hear- 598 SUITS IN EQUITY. ing R. Y., Esq., for the defendants and R. X., Esq., for the plaintiif, it is ordered that this cause be re-opened and that the time allowed for taking testimony on behalf of the defendants in the above entitled cause, be extended to and including the day of . (i) As to when such leave will be granted see AUis vs. Stowell, 85 Fed. Rep. 481 ; in re Gamewell, etc., Tel. Co. vs. 73 Fed. Rep. 908. A circuit court cannot reopen case after the term at which final decree was rendered ; Roemer vs. Simon, 91 U. S. 149 ; Brooks vs. R. R. Co., 102 U. S. 107. No. 497. Order Suppressing Notice of Taking Testimony. [Caption.] On motion of R. Y., in behalf of defendants in the above cause, it is hereby ordered that complainant's witness, Lau- reau, be produced for cross-examination at , on ; or in lieu of this, that the complainant's notice for taking tes- timony in , on the day of be postponed to read on the day of ; and that said witness Laureau be produced at that time. In case the complainant, at their option, produce said wit- ness Laureau for cross-examination in , on the day of (in accordance with the first section of this order), the notice for taking testimony in on the same date is hereby suppressed. No. 498. Order Fixing Time within Which to File Briefs. [Caption.] On motion of compiamant, by R. Y., of counsel, it is now ordered that this case be and the same is submitted generally. It is further ordered that the parties complainant and defend- ant have and they are given sixty days from the date of this entry to file briefs herein. NOTICES, MOTIONS, ORDERS, ETC. 599 No. 499. Notice of Application for Trial. [^CapHon.\ To Y. & Y., Attorneys for Defendant \or, PlaintiflF]. Please take notice that on the day of , 1894, we will apply to the clerk of said court to have the above cause noted for trial at the April [or as may be\ Term thereof, 1894. X. & X., Attorneys for Plaintiff [or, Defendant]. Service of the above notice is hereby acknowledged this day of , 1894. Y. & Y., Attorneys for Defendant \or, Plaintiff]. No. 500. Notice of Final Hearing. [Caption.] Y. & Y., Solicitors for Defendant. Please take notice that under the order entered in the above-entitled cause on the day of , 1894, said cause will be brought on for final hearing upon the plead- ings, proofs, and proceedings herein, before the Judges of this honorable court, at a stated term thereof to be held at , in the city of , on the day of next, at the opening of the court on that day, or as soon thereafter as counsel can be heard. X. & X., Dated . Solicitors for Plaintiff. Service, etc. [as in No. 499] . No. 501. Stipulation to Submit Cause on Printed Briefs. [CapHon.'] It is hereby stipulated and agreed that this cause be sub- mitted to the court on printed arguments; the plaintiff's 600 SUITS IN EQUITY. counsel to serve his argument, within days, and the de- fendant's counsel to answer the same within days there- after, and the plaintiflF's counsel to reply within days after the defendant's counsel's arguments shall have been served. Dated this day of , at . R. X., Solicitor for Plaintiff. R.Y., Solicitor for Defendant No. 502. Motion to Enter a Decree Nunc Pro Tunc. [Caption.'l Comes now the plaintiff [or defendant] above-named and moves the court: That the decree [or order] made in this cause, bearing date, etc., has been drawn up, but the time for entering the same, according to the rules of this court, being elapsed ; This plaintiff [or defendant], therefore, moves the court that the said decree [or order], may be entered nunc pro tunc as of the day of . R. & R., Attorneys for . No. 503. Motion to Rectify a Decree or Order. [Caption.^ Comes now the plaintiff [or defendant] and shows to the court : First. That by the decree [or, by an order] made in this cause by [as the case may be'], dated the day of ■- , 19 — , it was decreed, etc. [Set out so much of the decree or order as is material to the subject matter of the motion.] Second. That. the said decree [or, order] has been duly entered in, etc. NOTICES, MOTIONS, ORDERS, ETC. 6oi Third. That since such entry was made, this plaintiff [or defendant] has discovered that the said decree [or order] omits to Estate omissions required to be rectified.'] This plaintiff [or defendant], therefore, moves the court that the said decree [or order] may be rectified or corrected by [state in what respecf] ; or that the court \_or, as may be] will please to make such other order in the premises as to the court [or, as it may be~\ shall seem meet. R. & R., Attorney for . No. 504. Motion for Decree on Mandate (i). [Caption.'] Now comes the defendant, C. D., and shows to the honor- able court that the above named cause was commenced in this court, tried and decree entered against defendant. That the defendant appealed said cause to the Circuit Court of Appeals for the circuit, where the decree of the trial court was reversed, and said Court of Appeals in its opinion filed, says : " Decree reversed, and cause remanded for fur- ther proceedings not inconsistent with this opinion." That on the day of , 19 — , mandate issued, and by order of this court, on motion, said mandate was filed and entered of record in said cause, , 19 — . Defendant now moves the court for final decree upon the facts found by the honorable trial judge, and the law as laid down in said opinion of the honorable Circuit Court of Ap- peals, and for such other or further proceedings as may be necessary, that justice may be done the parties. Y. & Y., Solicitors for Defendant, C. D. (i) Desty's Fed. Proc. sec. 213. 6o2 SUITS IN EQUITY. No. 505. Petition for New Trial (i). [Caption.] Your petitioner shows this honorable court : First. That since the argument and decision rendered here- in your petitioner has discovered certain new evidence of which he did not know and could not have known by reason- able diligence at the time of the hearing of this cause. The evidence referred to consists of \_here state the nature of the vidence relied upon, naming the witnesses and character of the testimony which petitioner expects to introduce]. Wherefore your petitioner prays that a rehearing may be granted herein with leave to take such additional testimony on the matters heretofore referred to, and that the court may fix a time within which such testimony may be taken on the part of your petitioner and such further time as opposing party may take evidence to rebut the same. And your petitioner will ever so pray. R. S., Petitioner. [VerHication.'] (i) A petition for rehearing must be filed at the term at which the de- cree was entered. Brooks vs. R. R. Co., 102 U. S. 107. As to rehearing on the ground of newly discovered evidence see Munici- pal Signal Co. vs. Nat'l Elec. Co., og Fed. Rep. 569 ; Robinson vs. Suttef, II Fed. Rep. 798; Central Trust Co. vs. Worcester Cycle Mfg. Co., 93 Fed. Rep. '712, 35 C. C. A. S47- It rests in the discretion of the judge to grant or refuse a rehearing. Am. Diamond Rock Boring Co. vs. Sheldens, i Fed. Rep. 870. No. 506. Order Denying Motion for Rehearing. ^Caption.] This cause coming on to be heard on the petition of de- fendant for a re-hearing herein, came the parties plaintiff and defendant by their respective attorneys and made argument to the court thereon. Whereupon the court being fully advised, it is ordered that said petition for a re-hearing be and the same is denied. NOTICES, MOTIONS, ORDERS, ETC. 603 No. 507. Motion to Retax Costs. \^Ca^tion.'\ Now comes tlie defendant herein, and moves the court to retax the costs in the above-named cause by adding to the same already taxed the following items to- wit : $20.00 as docket fee. $20.90 as notary fees for taking depositions of S. M., G. H., and I,. F. $15.00 as notary fees for taking depositions of F. L., B. R., and E. H. $15.00 as attorney's fees on the depositions of the six witnesses above named. Y. & Y., Solicitors for Defendant. \An affidavit showing that the notary fees had been actually paid should be filed with this motion?^ No. 508. Cost Bill. See form No. 54. No. 509. Final Record in Equity. The plaintiff in the above-entitled cause filed his bill of complaint, which is hereunto annexed, on day of and the writ of subpoena was thereupon issued and returned personally served. An appearance was duly entered for the defendant by R. Y., his solicitor, and on the first Monday of thereafter, an answer to said bill of complaint was filed, the same being hereunto annexed. On the first Monday of thereafter, the plaintiff filed a replication, the same being hereto annexed. On the day of , an order of the court granting to the plaintiff a preliminary injunction as prayed for in the 604 SUITS IN EQUITY. bill of complaint was filed and entered, which said order is hereunto annexed. ' Testimony was thereafter taken by the respective parties and filed in the clerk's office of the said circuit court. Afterwards, and at the term of of said court, pres- ent the Honorable G. W., district judge, the said cause came on to be heard on the pleadings and proofs, and was argued by counsel. On the day of , a decree of said court was filed and entered in favor of the plaintiff, by which it was adjudged that a perpetual injunction should issue against the defendant, and that an accounting be had before C. G., master of said court ; the said order being hereunto annexed. On the day of , the said master filed his report, upon which, and on the day of , the said court caused its final decree to be entered herein, the same being hereunto annexed. And the costs having been taxed by the clerk at ■ dollars, the process, pleadings, and decrees, together with other papers filed in said cause, are duly annexed hpeunto. Wherefore let the said A. B. recover of said C. D. the sum of dollars, as adjudged in said final decree, together with the further sum of dollars, the cost and charges as taxed, making in the aggregate the sum of dollars. Signed and enrolled this day of . B. R., Clerk of the Circuit Court of the United States for the district of . NOTICES, MOTIONS, ORDERS, ETC. 605 No. 510. Writ of Possession or Assistance (i). The United States of America, District of , ss. The President of the United States of America to R. P., Special Master Commissioner of the Circuit Court of said District, Greeting: Whereas, according to the tenor and true meaning of a decree in equity in a certain cause depending in our circuit court of the United States within and for the district afore- said, wherein A. B. is plaintiff, and C. D., and others, defend- ants, it was decreed that C. D. deliver possession to A. B. of the messuage, lands and premises, situate in the town- ship of -, in the county of , and state of , and bounded and described as follows: \set forth description^ The whole tract above described being the same premises heretofore conveyed to T. F., and by him conveyed to C. D. by deed dated the day of , 1894, and recorded in book , page , of said county records. Yet he, the said C. D., and others, ill-disposed persons, his accom- plices, have refused to pay obedience to said decree, and detain and keep possession of the said messuage, lands and premises, in manifest contempt of us, and our said court. Know ye therefore, that we being willing and desirous that justice should be done to the said A. B. in this behalf, do give unto you full power and authority to place and put the said A. B. and his heirs and assigns, without delay, into the full, peaceable and quiet possession of all and singular the said messuage, lands and premises, with their appurtenances, according to the true intent and meaning of the said decree ; and herein you are not in any wise to fail. l^Add teste. See No. 56.] (i) See Foster's Fed. Prac, Sec 348, 9th Equity Rule and Desty's Fed. Proc., p. 1 140; Comer vs. Felton, 61 Fed. Rep. 735, 22 U. S. App. 313; Terrill vs. Allison, 21 Wall 289. 6o6 SUITS IN EQUITY, No. 511. Final Decree Dismissing Bill (i). [C option.] This cause having come on to be heard this day of , upon pleadings and proofs, and Mr. R. X. having been heard on the part of the plaintiff, and Mr. R. Y. on the part of the defendant, and due deliberation having been had, it is ordered, adjudged, and decreed that the said bill of complaint herein be and the same is hereby dismissed, with costs to the defendant to be taxed. (I) See Eq. Rule 86. No. 512. Decree of Dismissal of Bill (another form) (i). [Caption.] This cause coming on, etc., this court doth order that the plaintiff's bill do stand dismissed out of this court [if there are other defendants who do not appear, or if dismissed against one of several defendants, as against the defendant C. D.J, with costs to be paid by the plaintiff A. B., to the said de- fendant C. D., and to be taxed by the, etc., [in case the parties differ] . (l) See Eq. Rule 86. No. 513. Decree of Dismissal Without Prejudice, Stating Reasons (i). [Caption.] This cause came on to be heard at this term and was ar- gued by counsel; and thereupon, upon consideration thereof, it is ordered, adjudged, and decreed by the court that the plaintiff is entitled to no specific lien or security upon either of the vessels mentioned in the plaintiff's bill, and has no equity to be relieved in respect thereof, and that his bill be dismissed, with costs to the defendants, without prejudice to his right to come in and receive a dividend of the said R.'s estate in common with the other creditors of the said estate, (i) See Eq. Rule 86. NOTICES, MOTIONS, ORDERS, ETC. 607 No. 514. Decree Overruling Exceptions to Master's Report and Al- lowing Replication to be Filed (i). [Caption.] This cause having been heretofore duly argued by counsel for the respective parties upon the exceptions filed to said de- fendant's amended answer and taken by the court under advise- ment and" mature deliberation having been had thereon it is now ordered that the said exceptions be and the same hereby are overruled ; and it is further ordered that said complainant be and hereby is allowed until the next rule day in which to file his replication to said amended answer. (i) See equity rule 86. No. 515. Decree Rescinding Contract for Fraud. \_Capiton.] This cause came on to be heard at this term, and was ar- gued by counsel, and thereupon, upon consideration thereof, it is declared by the court that the contract of sale, and the conveyance of the premises, and the notes of the said O. D. thereupon, as set forth in the bill, were made by and be- tween the said O. D. and the said J. T. and other parties, upon material representations and mutual mistakes as to the quality of timber on the premises so sold, and therefore ought to be set aside, and held null and void ; and the said O. D. ought to be repaid the amount of the said purchase- money actually paid by him thereupon and therefor by the said J. T., who received the notes for the same, and in his aid and for his relief, by such of the other parties, defendants to the bill respectively, for whom the said J. T. acted as agent, or who with a full knowledge of, and assent to, the said con- tract of sale and misrepresentations and mistakes, have received any of the said notes, or any part of the purchase- 6o8 SUITS IN EQUITY. money paid thereon by the said O. D.; but not for the part thereof received by any other party. And thereupon, in fur- therance of the declarations aforesaid, it is further ordered, adjudged, and decreed that the same contract of sale, and conveyance, and notes, be, and hereby are, annulled, re- scinded, and declared utterly void and of no effect. And the said O.D. is further ordered, adjudged, and decreed to convey the premises by such due and reasonable convey- ance or conveyances as shall be devised and reported by a master, when and so soon as the purchase-money actually paid by him shall be repaid as hereinafter mentioned. And it is further ordered, adjudged, and decreed by the court that the said J. T. be, and hereby is, held directly liable to the plaintiff for the whole amount of moneys paid as afore- said, deducting, however, therefrom the proceeds of timber sold, as well as the value of timber taken from said lands by and under the authority of the said O. D., and remaining unsold, and making all due allowances for all proper charges and expenses incurred in regard to said timber, and for taxes paid on the said lands. And it is further ordered, adjudged, and decreed that such of the other parties, defendants to said bill, as with a full knowledge of the premises, or for whom the said J. T. acted as agent, or who assented to the said contract of sale and conveyance, with a full knowledge of the premises, shall be, and hereby are, decreed to be liable in aid and relief of the said J. T. to pay and deliver back to the said O. D. such parts or portions of the purchase-money paid by the said O. D. for the said lands as have been received by them respectively in the premises, or on the notes of the said O. D. so received by them , but no one of them to be liable for any purchase- money or notes received by any of the other parties defend- ants. And it is further ordered, adjudged, and decreed by the court that no damage or interest on the aforesaid moneys be al- lowed, except the proceeds of such timber, sold and unsold. NOTICES, MOTIONS, ORDERS, ETC. 609 as aforesaid, shall furnisli a fund therefor ; and in that event, interest upon said purchase-money to be added thereto as an offset pro tanto to the excess of said proceeds, not exceeding the amount of such excess. And it is further ordered, adjudged, and decreed by the court that it be referred to S. L., Esquire, as master, to ascer- tain the amount due to the plaintiff on the basis of this de- cree, and also the particular notes and sums received by each of said defendants of said purchase-money, so paid and se- cured as aforesaid, and to report the same to the court. And it is further ordered, adjudged, and decreed by the court that the master be clothed with full power to examine, as well the parties as any other witnesses, orally or upon written interrogatories, under oath, in the premises, and to require the production of all vouchers, papers, and other documents pertinent and proper in the premises ; and that he state a full account in the premises upon the basis of this decree. And that he be clothed with all the usual powers and authorities of a master in all things touching the prem- ises. And all further orders and decrees are reserved for the consideration of the court. No. 516. Decree for Specific Performance of Agreement for Policy of Insurance. \Captioni\ This case was thence continued from term to term until this present term ; when, to wit, on the day of , the same came on to be heard on the bill and answer and proofs in the case, and was argued by counsel. And it appearing to the court that the plaintiffs, through -their agent, made a proposal in writing for insurance which contained all the necessary terms of a valid contract for a policy, and that the defendants accepted this proposal. 6lO SUITS IN EQUITY. That this acceptance made a legal contract between the parties, which it is the duty of the court to order to be spe- cifically performed. That as it is admitted that the plaintiffs would have a good cause for action at law upon a policy, if issued in pursuance of the contract, there should be decreed, to them in this suit what they would be entitled to recover if a policy were issued and that which was agreed to be done were actually done: — Thereupon it is ordered, adjudged, and decreed that the said agreement so entered into between the said plaintifis and the said defendants set forth in the bill of complaint, and proven in this cause, be specifically performed. It is further ordered, adjudged, and decreed, that the plain- tifis recover of the said defendants the sum of eight thousand seven hundred and two dollars and forty-three cents, as and for their damage in this behalf sustained, a deduction having been first made from the sum agreed to be issued for pre- mium and salvage, and also the sum of two hundred and four dollars and twenty-four cents, for their cost in this be- half sustained No. 517. Entry Reversing Decree. \Caption.'\ The defendant C. D., heretofore appealed to the supreme court of the United States from certain parts of the final decree made by this court in this cause on the day of , and the supreme court of the United States having at the October term 1894, duly heard the said appeal upon the transcript of the record, and having thereupon ordered, adjudged, and decreed that so much of the said decree of this court as allows the said plaintiff" costs and the sum of dollars for interest on the damages found for him, was errone- ous and should be reversed and annulled, and that the residue of the said decree of this court should be affirmed ; and the said supreme court having remanded this cause to this court with NOTICES, MOTIONS, ORDERS, ETC. 6ii instructions that such proceedings be had in said cause as, according to right and justice and the laws of the United States, ought to be had, the said appeal notwithstanding, which said decree, order, and instructions appear to this court by the mandate of the said supreme court: Now, therefore, on filing the said mandate ordered [here set forth what is required by the mandate\. No. 518. Decretal Order Appointing Special Master. [Caption.^ This cause came on to be heard this day of , upon the pleadings and proofs, and was argued by counsel for the respective parties, and the court having considered the same, and being of the opinion \here set forth the facts found by the court]. And it is further ordered, adjudged, and decreed that the cause be referred to C. G., Ksq., as special master, to ascer- tain and report [here set forth the matters concerning which the master is desired to report\. And upon the coming in and confirmation of the said report that said plaintiff have a decree and execution for the amount found due him and also for the costs in this suit to be taxed. No. 519. Decree with Order on Receiver to Pay over Funds (i). [Caption.] This cause came on this day for hearing upon a report of the master, filed herein August , the. exceptions of A. C. thereto, and the pleadings and proof, and%as argued by coun- sel. Whereupon it was ordered, adjudged and decreed that said report be confirmed except as to the items of payment made 6l2 SUITS IN EQUITY. by the receiver out of the net rents in his hands, to wit: $ paid to the solicitor for the complainant, and interest thereon from November 26, , to July 10, , amount- ing to $ , and $ erroneously paid out by the receiver for insurance upon the property in controversy, said insur- ance covering the period of time elapsing after the sale of said property under the order of this court. As to these items, it is ordered that the receiver pay the same to the defendant, A. C, or to her counsel of record, T. W. It is further or- dered that the receiver pay to the said A. C, or to T. W., her counsel of record, the sum of $ , the balance remaining in his hands, according to the report filed herein August 22, . The court is of the opinion that these sums of money, the net rents arising from the property impounded by its receivership, are the property of A. C, and are not subject to the mortgage foreclosed in this court or applicable to the deficiency decree in favor of the complainant, and it so ad- judges and decrees. It is ordered that the receiver pay these sums, amounting to $ within ten days from the entry of this order. On motion of the attorney of record of A. C, he has leave to file notice of his lien under Act of General Assembly of the state of , passed April 13, , and the said re- ceiver and the defendant company are hereby required to take notice thereof. (i) See equity rule 86. The decree should not recite the pleadings, Whiting vs. U. S., 13 Pet. 16. No. 520. , Decree for Plaintiff on Bill to Enjoin the Transfer of Title in Patents by a Copartner, [Caption.] '^ This day this cause came on to be heard upon the plead- ings, evidence adduced by the parties and argument of coun- sel, and the court being fully advised in the premises, finds : NOTICES, MOTIONS, ORDERS, ETC. 613 That the plaintiff, R. C, has succeeded to all estate, prop- erty, rights and choses in action of the partnership known as J. W. & Son, of , including the claim herein sued upon; that the said J. W. & Son, on or about , being desirous of purchasing the entire interest of D. E., of , in letters patent of the United States, No. 336,434, issued to D. E. on February , for an improvement in automatic brick-cut- ting machinery, and reposing confidence in the integrity and fidelity of the defendant, B. E., who was then in the employ of said J. W. & Son, requested him, as their agent, to go to , call upon said D. E., and obtain from him an option for the purchase of his interest in said patent; that in pursuance of said instructions, the said defendant, or or about the day of , while acting as agent and representative of said partnership, called upon said D. E., and obtained from him an option to purchase, on or before his entire inter- est in said patent for the sum of $ , and also an option to have issued to him, the said B. E., or his assigns, at any time prior to said date, license to manufacture said patent at one point only on payment of the sum of $ for each license ; that said defendant, fraudulently and in violation of said in- structions and of his obligations to said J. W. & Son, took said options in his own name; that thereafter, to wit, on or about , said defendant procured the said D. E. to issue under the terms of said option to W. R., of , a license to manufacture said improvement in said city of , and to sell the machines so manufactured throughout the United States until the end of the term of said patent, for which li- cense said defendant B. E. was paid by the said W. R. the sum of $ , that thereafter, to wit, on , said defendant acquired the remaining interest of said D. E. in said patent under and by virtue of the terms of said option for the sum of $ ; that thereafter, to wit, on , said defendant, B. E., with intent to defraud said J. W. & Son, assigned and transferred, without receiving any consideration therefor, to 6l4 SUITS IN EQUITY. the defendant, J. E., a license to manufacture at any place and sell throughout the United States said invention under said patent; that the interest in said patent so assigned to said J. E. is held by him in trust for plaintiff; that thereafter, to wit, on or about , said defendant, B. E., with like in- tent and without consideration, assigned and transferred an- other shop right under said patent to W. H., of , which assignment is still in the possession and under the control of the defendant, B. E. The court further finds 'that the defendant, B. E., has re- ceived from the sale of interests in said patent the sum of , and that he expended in acquiring said interests the sum of $ . Wherefore, it is ordered, adjudged and decreed that the defendants, B. E. and J. E., hold all interest in said patent so transferred to them in trust for the plaintiff, and they are, and each of them is, hereby ordered and directed, within ten days from the entry of this order, to assign and transfer to the plaintiff all right, title and interest so acquired by them, or either of them, in said patent under and by virtue of said assignments and transfers; and the said B. E. is further or- dered and directed, within ten days from the entry of this or- der, to surrender to the clerk of this court the assignment of the shop right in said patent executed by him in favor of said W. H. ; and the said B. E. and J. E. are, and each of them is, enjoined from in any manner assigning, transferring or disposing of said patent, or of any interest therein. And the defendant, B. E., is ordered to pay to plaintiff the sum of dollars, in default of which execution is awarded as in proceedings at law. Judgment is also rendered against defendant, B, E. and J. E., for the costs of this action, taxed at $ . NOTICES, MOTIONS, ORDERS, ETC. 615 No. 521. Decree for Property Under a Will and Reference to Master. [Caption.] This cause came on to be heard upon the pleadings and proofs at this term and was argued by counsel ; and thereupon, upon consideration thereof, it was ordered, adjudged and •decreed as follows, viz. : That the complainant is the widow of S. B., deceased, and as such became entitled, on his death, to all of the prop- erty remaining at the death of S. B., in the hands of J. B., and to which said S. B. was entitled under the sixth clause of the will of H. B., deceased, and also to all property which came into the hands of said J. B. from any other source and belonged to the said S. B. in his lifetime. That all proceedings had in the Probate Court for the county of , state of , in the matter of the estate of H. B., deceased, after the death of S. B. are null and void as to the complainant, A. B. That the said J. B. died in the year 1899, at , and that lie left a last will and testament which has been duly admitted to probate by the Probate Court of county, and that by the provisions of said last will and testament and the order and judgment of the Probate Court of county, the de- fendants, F. B. and C. B., have been duly appointed executrix and executor of the estate and last will and testament of the said J. B., deceased. That this cause by proceedings duly had in this court has teen revived after the death of the defendant J. B. and the said executor and executrix made defendants herein. That the executor and executrix of the estate of J. B., de- ceased, as defendants herein account to the complainant for all property remaining in the hands of said J. B. at the time of the death of said S. B. which came to him under and by virtue of the sixth clause of the said will of H. B., deceased, 6l6 SUITS IN EQUITY. and do also account to the complainant for all property that came into the hands of said J. B. from any other source and belonged to the said S. B. in his lifetime. That this cause be referred to E. M., Esq., as special mas- ter to take testimony and report as to the amount and value of all the property remaining in the hands of J. B. at the time of the death of S. B. and to which the said S, B. was entitled in his lifetime under the sixth clause of the will of H. B., deceased, and also to take testimony and report as to the amount and value of all property which came into the hands of said J. B. from any other source and belonged to the said S. B. in his lifetime, and to state an account between the parties in this cause according tO' and in conformity with the rules and practice of this court. And upon the coming in and confirmation of said report that the said plaintiff have a decree and execution for the amount due to her and also for the costs in this cause to be taxed. No. 522. Decree on Bill of Interpleader. \_Caption.] This cause coming on to be heard, it appeared that the said Israel Thorndike the elder by his last will directed his execu- tors, of whom the complainant is the survivor, to place the sum of twenty thousand dollars in the office of the Massachusetts Hospital Life Insurance Company in trust, to receive the in- come and pay it annually to his son, Andrew Thorndike, dur- ing his life, and at his decease to take up the sum and pay it to the heirs-at-law of the said Andrew ; that said deposit was made, and the income paid to the said Andrew during his life ; that upon his decease, Israel Thorndike, a brother of the said Andrew, brought his action at law against the said executors, claiming one-sixth part of said fund as one of the heirs-at- NOTICES, MOTIONS, ORDERS, ETC. 617 law of the said Andrew ; that thereupon the said complainant filed his bill and amended bills in equity against the said Israel and other persons, who would be the heirs-at-law of the said Andrew if he had died unmarried and without unlawful is- sue; and also against Katharina Bayerl Thorndike, claiming to be the lawful widow of the said Andrew ; and against An- dreas Thorndike and Anna Loring Thorndike, infants, claim- ing to be the lawful issue and heirs-at-law of the said Andrew, praying that the said Israel might be enjoined from prosecut- ing the said suit at law, and that the several parties might interplead and present their respective claims for the consid- eration and determination of the court; and thereupon the said parties did appear by their respective counsel and guard- ians, and proofs being taken and read, upon arguments of counsel, it was considered and now adjudged and decreed that the said Andreas Thorndike and Anna Loring Thorndike are both children of the said Andrew, begotten upon the body of the said Katharina, before marriage; that afterwards the said Andrew was duly and lawfully married to the said Kath- arina, lived with her as his lawful wife, and openly and pub- licly acknowledged the said Andreas and Anna Loring to be his children and heirs-at-law; that by reason thereof th^ are entitled under the will of the said Israel Thorndike the elder tO' the said sum of money to be divided between them in equal shares ; and that the said Katharina is not entitled to any part thereof; and that the other defendants are not en- titled. And it appearing to the court by the statement of the said complainant that he holds the sum of twenty thousand seven hundred and forty-five dollars and twenty-seven cents subject to the order and direction of the court: It is further or- dered and decreed that he do pay to the solicitors, F. C. L., C. W. L. and A. D., their costs of counsel fees to be taxed as between solicitor and client, and that the residue thereof be paid one-half part to J. G., guardian of the said Andreas 6l8 SUITS IN EQUITY. Thorndike, and one-half part to W. I. B., guardian of the said Anna Loring Thorndike ; and that the bill be dismissed as to the other defendants without costs. No. 523. Decree on Stockholders' Petitions in a Suit against a Build- ing Association. Be it remembered that this cause came on to be heard on this day of , before the Hon. C. D., judge, etc., upon the bill, answer, intervening petition of W. L. et al., the agree- ment of stockholders exhibited with said petition, the report of the receiver (attested by the secretary of the association), made pursuant to said agreement of stockholders and filed September, 1897, and the exhibits to said report, which re- port and exhibits were presented and relied upon as evidence by said intervening petitioners, and were sO' admitted in open court by the defendant association; and thereupon it is or- dered, adjudged and decreed as follows: . First. That the agreement betweeen the stockholders of said association, dated , 1897, and filed with said petition to W. L. et al., as Exhibit " A " thereto, be and the same is hereby approved, ratified and affirmed by the court; and that the same be carried out by all proper orders, decrees and pro- ceedings in this cause necessary to carry it out according to its terms. Second. That the defendant, the C. D. Building & Loan Association, is justly indebted to each of the following named investment and paid-up stockholders in said association, after making all proper deductions and charges in the several amounts set after the names of said stockholders, respectively, said amounts being the values of said stocks belonging to said stockholders, calculated according to said agreement, to wit: [Specify indebtedness.] The aforesaid indebtedness to said non-borrowing stock- NOTICES, MOTIONS, ORDERS, ETC. 619 holders shall be paid and satisfied, as far as practicable, and pro rata by applying to and upon the same the notes of the borrowing stockholders hereinafter provided for and the prop- erty of the defendant association remaining after satisfaction of the expenses of this winding up proceeding, and the pay- ment of prior claims as the same in this cause shall- be here- inafter adjudged; and orders and decrees shall be had and taken in this cause from time to time whenever and so long as necessary to that end until the a,ffairs of said association are finally wound up. Third. That the petitioner, C. S., is justly indebted to said C. D. Building & Loan Association in the sum of dollars, after allowing petitioner all credits and set-offs to which he is ■ entitled, including a credit for ninety per cent, of the value of his stock in said association. \_In like manner set out the finding with reference to the other petitioners and stockholders.] Fourth. That each of said petitioners adjudged and decreed to be indebted to said C. D. Building & Loan Association in the foregoing sections of this decree, numbered , inclu- sive, pay to said association the amounts of indebtedness sev- erally adjudged against them in said sections, together with interest thereon from January . But said debtors may pay the amounts thus adjudged against them by executing to P. S., receiver in this cause, their several promissory notes for the amounts severally found and adjudged due from them, as aforesaid, the notes to be in such sizes as the receiver may determine, said notes to be dated and bearing interest from January , and to be substantially in the form set out in section No. 7 of the agreement of stockholders, dated , and filed as Exhibit " A," to said petition of W. L., et al., in this cause, the said debtors in each instance securing pay- ment of said notes by executing mortgages upon the proper- ties now mortgaged by them to said association; or, in case such mortgages cannot be given, by giving such other secu- 620 SUITS IN EQUITY. rity as shall be satisfactory to said receiver, said mortgages to be executed to a trustee, to be named by said receiver, and to each provide for foreclosure in bar of redemption, when the notes secured thereby shall become due and enforceable, and also provide that the mortgagors shall keep the prop- erty insured for the benefit of the mortgagee, and keep the taxes paid. And the receiver in this cause is authorized and directed to make settlements with said debtors to the associa- tion, as provided in said agreement of February , and this decree, and report said settlement, together with the notes and mortgages received by him, to this court as soon as prac- ticable. But the court hereby expressly reserves the right to make all further and additional orders and decrees to fore- close the mortgages, executed by said debtors and borrowing stockholders, to said association for the security of their sev- eral loans received from said association, in all cases where said debtors refuse or fail to make settlements of their said indebtedness, as hereinabove provided; and to take all neces- sary further steps by sales of said property under said mort- gages to enforce satisfaction of the aforesaid decrees in fa- vor of said association; and to take such other and different steps and proceedings by transfers of the present mortgages to the association, or otherwise, as may be deemed necessary to secure . payment of the indebtedness from said borrowers to said association. Whereas it appears to the court said debtors of said as- sociation have hereinbefore been credited with only ninety per cent, of the ascertained value of their stock, and ten per cent, thereof has thereby been held back to meet possible loss- es on stock arising from litigation, expenses and depreciation of property. It is further ordered and decreed : That if, after the wind- ing up of said association in this cause, it shall appear that all of said per cent., thus retained, is not necessary for said purposes, that part of said per cent, which shall notices; motions, orders, etc. 621 appear to have been kept back unnecessarily shall be credited and distributed pro rata to the stockholders from whom it has been thus retained, and the amounts going to the aforesaid borrowing stockholders respectively shall be credited upon their notes executed to the receiver, as aforesaid. Fifth. That this cause be retained upon the docket of the court to pronounce all further orders and decrees, and take all further proceedings necessary to carry out and execute the terms of this decree, and to secure payment of the decrees hereinbefore pronounced in favor of said association, and to make distribution of said notes and mortgages and the real estate and other property of the association upon its indebted- ness and to its creditors, hereinbefore adjudged in accordance with said agreement of , and to wind up said association. The receiver in this cause is hereby authorized to have neces- sary blank notes and mortgages printed to carry out the di- rections of this decree. Sixth. And it appearing to the court that there are a num- ber of petitions in this cause setting up small claims for taxes, etc., and that the receiver is able to make favorable compro- mises of said claims, he is hereby authorized and empowered to make compromises of any and all of said claims in such manner as his judgment may dictate, and to carry out any compromise which he has already prepared of such claims; and he will report to this court any and all compromises thus made by him. This is not to restrict the power heretofore given him by decree to make compromises with borrowing stockholders. No. 524. Decree in Stockholders' Suit against Building Association. {^Caption.'] This cause coming on for decretal order on this day of , before the Hon. C. D., upon the pleading, exhibits 622 SUITS IN EQUITY.- on file, including the agreement for settlement between the stockholders filed with stockholders' petition, the reports of receiver, and the whole record in the cause, from all of which it appears that at the time of the appointment of the receiver the C. D. Building & Loan Association was the owner of the following described i6 pieces of real estate, situate in county, , viz. : [Here copy descriptions of said real es- tate from Exhibit to report of receiver^ ; that the invest- ing of non-borrowing stockholders of defendant corporation agreed, for the purpose of saving expenses and preventing depreciation of said real estate by forced sale of the same to take said real estate at a fair valuation; that the respective values set after the several pieces of real estate hereinabove de- scribed were fixed in pursuance of the agreement of settlement filed in this cause, by a committee consisting of borrowing and non-borrowing stockholders, and that said values are fair and reasonable : It is therefore ordered and decreed that all the right, title, interest and demand, both legal and equitable, of the defend- ant, C. D. Building & Loan Association, in and to said i6 parcels of real estate, hereinabove described, be and the same hereby is divested out of said C. D. Building & Loan Asso- ciation and , vested in Peter Staub, as trustee for the non- borrowing or investing stockholders as a class, said non-bor- rowing stockholders being as follows, and their holding of stock being the amounts severally set after their respective names, to wit: And it is decreed that the amount of said valuation, to wit, $ , be charged against said stockholders as a payment pro tanto upon their said stock. It further appearing to the court that in pursuance of said agreement between the stockholders and the decree pass- ed and entered in this cause , the receiver, P. S., has in settlement with borrowing stockholders received from them notes secured by mortgages upon real estate as follows : NOTICES, MOTIONS, ORDERS, ETC. 623 And that the investing or non-borrowing stockholders agreed to accept said note and mortgages at their face value as a payment pro tanto upon their stock as a class. It is therefore ordered, adjudged and decreed that the amount of said notes and mortgages, to wit, $ , be charged against said stockholders as a payment pro tanto upon their said stock, and that said P. S., as trustee for the aforesaid investing stockholders, take and hold said notes and the mort- gages made to him to secure the same in accordance with the terms of the aforesaid agreement between stockholders. It is further decreed that said P. S. hold said i6 pieces of real estate and said notes and mortgages in trust for the use and benefit of the aforesaid investing stockholders, accord- ing to the amount of stock owned or held by them as herein- above stated, and upon the following trusts, to wit : He shall hold said titles until there shall be a meeting of said stockhold- ers, and they shall decide by a vote of a majority in interest whether said notes and realty shall be divided or partitioned among said stockholders, or sold for distribution of proceeds by a committee of three, to be appointed by them equitably ac- cording to the value and solvency of said properties and notes divided, or shall be sold in whole or in part for distribution and until said properties and notes shall be divided and par- titioned among said stockholders in some manner according to law, and he shall, in accordance with such vote of said stockholders, make or cause to be made partition of said prop- erties, or the proceeds thereof among those entitled as afore- said ; and he shall have full power and authority to assign said notes and the mortgages securing the same, and such parts of the same, to the several stockholders as may be necessary to make proper division thereof among the same ; and he also shall have power in carrying out the wishes of said stockhold- ers aforesaid to make all proper conveyances of said real es- tate and of said notes and mortgages. It is further decreed that the amount of said notes as afore- 624 SUITS IN EQUITY. said be charged to said investing stockholders as assets of said association, and be credited as having been paid to said investing or non-borrowing stockholders. It is further ordered and decreed by the court that in fur- therance of this decree the President and Secretary of the C. D. Building & Loan Association execute, acknowledge and deliver in the name and on behalf of said association a deed, in proper form, to the said P. S., trustee, for said 16 pieces of real estate above described. It further appearing to the court that P. S., trustee, has in his hands sums amounting to $ , received as payment of principal and interest upon the aforesaid notes executed to him under and by virtue of said agreement of stockholders, and the decree of this court of September , and that said amount belongs to the aforesaid non-borrowing stockholders, said P. S. is ordered and directed to make division of said moneys among said stockholders upon their said stock hold- ings pro rata, or in such manner as said stockholders shall di- rect. It further appearing that said P. S., as receiver has the sum of $ in his hands belonging to the association and received from other sources, it is ordered that the sum of $ be retained for the present to pay the expenses of this cause under the further orders of the court, and that the re- mainder, be distributed to and among said non-borrowing stockholders pro rata. The case is retained in court for such future orders and direction as may be necessary. Enter this. No. 525. Decree Dissolving Restraining Order and Refusing Leave to Intervene by Purchaser. [Caption.] This cause came on this day to be heard upon the petition filed herein by C. M., receiver of the C. & D. Railroad Com- NOTICES, MOTIONS, ORDERS, ETC. 625 pany, appointed under a decree in this cause against the city of and the individuals named as defendants constituting its legislative council and upon the answers of said defend- ants thereto and upon the orders heretofore had in this cause and the depositions and other proofs on file herein; and there- upon the defendants moved to the court to dismiss said petition and dissolve the restraining order hereto- fore issued in this cause upon the ground that it appeared by decree entered herein that said C. M. as such receiver was discharged from further service as such by decree of this court entered herein , and upon the further ground that it appeared that the properties and assets of the said railroad company had been sold by decree of the court entered in the cause of A. B. Trust Company vs. C. D. Rail- road Company pending in this court, on the day of , and all of said properties and assets had been delivered to the purchaser by said receiver. And thereupon came the South- ern Railway Company and presented its petition in open court asking leave as the purchaser of said properties and assets, rights of action and choses in action to be substituted as a party complainant herein in lieu and stead of said C. M., re- ceiver. The court having considered said motion refused to allow said petition of the Southern Railway Company to be filed herein and to allow said company to be substituted as a party complainant hereto in the room and stead of C. M., re- ceiver. And thereupon the court having considered the mo- tion made by said defendants to dismiss the petition filed by said receiver and to dissolve the restraining order hereto- fore issued herein does grant the same. It is therefore order- ed, adjudged and decreed that the petition filed herein and the amendment thereto, by said C. M., receiver against the city of be and the same is hereby dismissed, the court being of opinion that the sale of said property and the order en- tered discharging said receiver operate to and did abate this action. It is further ordered that the restraining order here- 626 SUITS IN EQUITY. tofore issued in this cause on said petition be and it is hereby dissolved and discharged. The court having reached this conclusion did not consider the case upon its merits. This decree is entered without prejudice to the rights of the South- ern Railway Company to bring any new and independent ac- tion to protect its purchased interest. All of which is finally ordered and decreed. No. 526. Decree for the Plaintiff with Lien and Order for Sale. [Caption.] This cause came on to be heard at this term upon the plead- ings, proof and report of the Special Master filed herein July I St, , and annexed hereto, and the exceptions thereto, and was argued by counsel. And thereupon, upon consideration thereof, it was ordered, adjudged and decreed that said re- port of the Special Master filed herein July ist, , and hereto annexed, be, in all things, confirmed. And it appear- ing from an inspection of said report that the defendants, P. C. and A. C, are indebted to the Southern Building & Loan Association in the sum of $ , with $ accrued interest, aggregating $ , the amount of said indebtedness so ad- judged, it was further ordered, adjudged and decreed that complainant, the Southern Building & Loan Association, have and recover of the defendant, P. C, the said sum of $ , with interest until paid, and the costs of this cause, for which execution will issue. And it was further ordered, adjudged and decreed that said sum of $ , with accruing interest, is a lien upon the lot or parcel of ground described in the bill, situate in the city of , county of and state of , to wit : [Describe the property on which the lien is to attach.'] And it was further ordered, adjudged and decreed that if said sum of money with accruing interest, and the costs of this NOTICES, MOTIONS, ORDERS, ETC. 627 cause, are not paid or caused to be paid by the defendants, P. C. and A. C, within ninety (90) days from the entry of this decree, then J. N., Special Master, after giving thirty (30) days' notice, by advertisement in the Evening Scimitar once a week for four successive weeks, will sell said lot or parcel of ground to the highest bidder for cash at public ven- due, at the door of the court house of county, in the city of , in bar and free of all right and equity of redemption in said defendants. The costs in this cause will be paid in the first instance, out of the proceeds of such sale. No. 527. Decree of Foreclosure of a Railroad Mortgage (i). The Circuit Court of the United States, within and for the Western Division of the Western District of Tennessee. The Farmers' Loan and Trust Company" vs. The Memphis and Charleston Railroad Company, The Central Trust Com- pany of New York, and Samuel Thomas. No. 491. Decree of Foreclosure. This cause came on to be heard at this term upon the plead- ings and proofs, and was argued by counsel, and thereupon, upon consideration thereof. It was ordered, adjudged and decreed, that the mortgage set forth in the bill of complaint herein, made by the defend- ant, The Memphis & Charleston Railroad Company, to the complainant, The Farmers' Loan & Trust Company, bearing date the twentieth day of August, 1877, is a valid and sub- sisting mortgage, and constitutes a lien prior to the estates, in- terests or liens of any of the parties defendant to this cause upon the mortgage premises, property and franchises, to wit : 628 SUITS IN EQUITY. All and singular the main line of railroad of the said Mem- phis & Charleston Railroad Company, extending from the point of commencement thereof, in the city of Memphis, in the state of Tennessee, via Corinth, in the state of Mississippi, and Huntsville, in the state of Alabama, to the terminus there- of in Stevenson in the said state of Alabama, connecting there with the Nashville & Chattanooga Railroad, being a distance of two hundred and seventy-two miles, be the same more or less ; and also the branch, of said railroad, situate in the state of Tennessee, known as the Somerville & Moscow branch, ex- tending from Moscow, on the main line, to Somerville, a dis- tance of about fourteen miles, be the same more or less ; and also the branch of said railroad, situate in the state of Ala- bama, extending from Tuscumbia, on the main line, to Flor- ence, a distance of about five miles, be the same more or less, arid including the bridge across the Tennessee river, near Florence ; and alsO' the Washington Street Branch, so-called, of said railroad, extending from the depot of said main line in the city of Memphis, through Washington street and Centre Landing to the Mississippi river, and the depot grounds and wharves on said river, and all the right and privileges of said railroad company in respect of the use of the streets and wharves and levee on the Mississippi river; and also, all and singular the right of transportation of the passenger cars and freight cars of the said The Memphis & Charles Railroad Company on and over the railroad between Stevenson, in Alabama, and Chattanooga, in Tennessee, which said Mem- phis & Charleston Railroad Company, at the date of the exe- cution of said mortgage, namely, August 20th, 1877, had or was entitled to, or could then, or since then, claim under or in virtue of the contract of the date of June twenty-third and July twenty-sixth, eighteen hundred and fifty-eight, made be- tween the Memphis & Charleston Railroad Company and the Nashville & Chattanooga Railroad Company, and all the rights and privileges whatsoever, for or in respect of the use NOTICES, MOTIONS, ORDERS, ETC. 629 of, or transportation over, the line of railroad between Ste- venson and Chattanooga, now belonging to the Nashville, Chattanooga and St. Louis Railway, which the said Memphis & Charleston Railroad Company holds or is in anywise en- titled unto, or could, at the date of execution of said mort- gage, namely, August 20th, 1877, or at any time since then, claim either under or in virtue of the before-mentioned con- tract of June and July, eighteen hundred and fifty-eight, or otherwise howsoever, together with all and singular the road- way or track of the aforesaid main line of railroad extending from Memphis to Stevenson, as aforesaid, and of the said several branches respectively, and the superstructure and rails laid or to be laid thereon respectively, and all the appurte- nances thereof, and all the sidings, turnouts, bridges, wharves, viaducts, culverts, walls, fences, ways and rights of way, de- pots, station-houses, engine-houses, car-houses, freight-houses, wood-houses, depot grounds and lands procured, provided, or intended for use for that purpose; building and repair shops, machine shops, and lands used or procured, or intended for sites thereof, and other buildings, structures, lands and im- provements whatsoever, leases and leasehold interests, con- tracts, easements and privileges belonging or appertaining to, or used or procured, or designed tO' be used for the purpose of or in connection with the said main line of railroad and branches respectively, or the maintenance or operation there- of, or of any part thereof, at the date of the execution of said mortgage, namely on the 20th day of August, 1877, oi" ^t any time thereafter; and also all the locomotives, tenders, passen- ger cars, baggage cars, freight cars and other cars, and all other rolling-stock or equipment, and all machinery, tools and implements ; rails, chairs and spikes and other materials what- soever, owned or possessed by the said Memphis & Charles- ton Railroad Company at the date of the execution of said mortgage, namely, on the 20th day of Augfust, 1877, or at any time thereafter for the uses or purposes of, or designed for 630 SUITS IN EQUITY. use in connection with, or for the operation, maintenance or reparation of the said main line of railroad and branches re- spectively, or the equipment or appurtenances thereof, and all of the engines, cars and rolling-stock or equipment of any kind, machinery, tools, implements, rails and other materials which now belong or appertain to, or are in use, or on hand, designed for use for the purpose of said main line of railroad and branches respectively, or any part thereof, or have belong- ed or appertained to, or been in use, or on hand, designed for use for the purposes of said main line of railroad and branches respectively, or any part thereof, at any time or times after the date of the execution of said mortgage, namely, August 20th, 1877, and all the lands and real estate whatsoever of any and every kind whatsoever, and all improvements thereon sit- uate in the states of Tennessee, Alabama and Mississippi re- spectively, which were owned or possessed by, or which be- longed to the said Memphis & Charleston Railroad Com- pany at the date of the execution of said mortgage, namely, August 20th, 1877, ^^'^ '^Iso all and singular the rights, priv- ileges and franchises whatsoever, which the said Memphis & Charleston Railroad Company has acquired or become pos- sessed of or entitled unto, since the said date of the execution of said mortgage, for or in respect of or for the uses or pur- poses of the said main line of railroad and branches respective- ly, or the operation or maintenance thereof, and also all the tolls and income of the said main line of railroad and branches respectively, together with all and singular the tenements, he- reditaments and appurtenances unto the premises aforesaid, or any of them, or any part thereof belonging or in any wise appertaining; and the reversion or reversions, remainder and remainders, rents, issues and profits thereof; and all the es- tate, right, title, interest, property, possession, claim and de- mand whatsoever, as well at law as in equity, of the said Memphis & Charleston Railroad Company, of in and to the NOTICES, MOTIONS, ORDERS, ETC. 63 1 same, and every part and parcel thereof, with the appurte- nances. It was also ordered, adjudged and decreed, that the lien of the said mortgage is prior to all other liens of whatsoever na- ture, except only the following liens, to which it was ordered, adjudged and decreed to be subject, that is to say : First. A certain statutory lien in the nature of a mort- gage, originally created and existing in favor of the state of Tennessee, and mentioned and described in the said mortgage of August 20th, 1877. Second. The lien of a certain mortgage or deed of trust, dated May ist, 1854, made by the said The Memphis & Charleston Railroad Company to James Punnett, G. B. La- mar and Thomas Fearn, as trustees, mentioned and described in the said mortgage of August 20th, 1877, and known as the first mortgage and extended by an indenture dated Sep- tember 7th, 1880, to which indenture the complainant. The Farmers' Loan & Trust Company, as trustee under the said mortgage of August 20th, 1877, was a party, and duly exe- cuted the same in accordance with certain provisions to that end in the said mortgage of August 20th, 1877, contained. Third. The lien of a certain other mortgage or deed of trust, dated January ist, 1867, m»de by the said The Memphis & Charleston Railroad Company to Gustavus L. Masten, George W. Neal and William C. Rehren, as trustees, mention- ed and described in the said mortgage of August 20th, 1877, and known as the second mortgage, and extended by an in- denture dated September 7th, 1880, to which indenture the complainant. The Farmers' Loan & Trust Company, as trust- ee under the said mortgage of August 20th, 1877, was a party, and duly executed the same, in accordance with cer- tain provisions to that end in the said mortgage of August 20th, 1877, contained. It was also ordered, adjudged and decreed, that default has been made in the payment of interest due upon said mort- 632 SUITS IN EQUITY. gage of August 20th, 1877, entitling the complainant to a sale of said mortgaged property and premises, unless the defend- ant, the Memphis & Charleston Railroad Company, shall pay the amount of the entire bonded indebtedness secured by said mortgage, at a short day, to be fixed by the court ; that there are secured by said mortgage lien the following amounts of bonds and coupons, with interest thereon, of the said The Memphis & Charleston Railroad Company, which are out- standing and past due, viz. : First. The amount of $79,240, for coupons due January first, 1895, with 'interest on the amount of said coupons at the rate of six per centum per annum from that date; $10,- ■235.16, making $89,475.16. Second. The amount of $79,240 for coupons due July first, 1895, with interest at a like rate from that date; $7,857.97, making $87,097.97. Third. The amount of '$79,240, for coupons due January first, 1896, with interest at a like rate from that date; $5,- 480.76, making $84,720.76. Fourth. The amount of $79,240 for coupons due July first, 1896, with interest at a like rate from that date; $3,103.57, making $82,343.57. Fifth. The amount of $79,240 for coupons due January first, 1897, with interest at a like rate from that date; $726.37, making $79,966.37. Sixth. The amount of $2,264,000 for the principal of said bonds, with interest at the rate of seven per centum per an- num from January first, 1897, $24,214.22; so that the en- tire sum due for principal and interest, and interest on the un- paid coupons up to the day of the date of this decree, is the sum of $2,711,816.05 and, It was further ordered, adjudged and decreed that the mort gaged property and premises above described are so situated that they cannot be sold except as an entirety, due regard be- ing had to the best interests of those interested in the same; NOTICES, MOTIONS, ORDERS, ETC. 633 and further, that the said defendant. The Memphis & Charles- ton Railroad Company, is utterly insolvent and unable to pay its debts and liabilities; and. It is further ordered, adjudged and decreed, that unless the parties defendant, or some of them, shall, on or before the 31st day of March, 1897, pay the complainant the entire sum hereinbefore found to be due for principal and interest, including interest on unpaid coupons up to the date of this decree, as hereinbefore fixed and determined, with interest thereon from the date hereof, then the said mortgaged prem- ises and property shall be sold as hereinafter directed, and all the right and equity of redemption of the defendants, and each and all of them, of, in and to the said mortgaged prem- ises, property, rights, assets and franchises, and every part and parcel thereof, shall be forever barred and foreclosed. In case the said sum shall be paid as herein decreed, then any party hereto may apply to this court for such further re- lief and for such further directions as may be just and equit- able. It was further ordered, adjudged and decreed, that if de- fault be made in making said payment on or before the said 31st of March, 1897, then all the said mortgaged premises and property, real, personal and mixed, rights and franchises, wherever situated, shall be sold as an entirety, and without an appraisement or right of redemption, subject, however, to the said statutory lien and to the said first mortgage or deed of trust, dated May ist, 1854, executed by said The Memphis & Charleston Railroad Company to James Punnett, G. B. Lamar and Thomas Fearn, as trustees, and said second mort- gage or deed of trust, dated January ist, 1867, made by said The Memphis & Charleston Railroad Company to Gustavus L. Maston, George W. Neal and William C. Rehren, as trust- ees, said first mortgage and second mortgage having been extended by certain indentures, both dated September 7th, 1880, and hereinbefore mentioned. The said sale shall be 634 SUITS IN EQUITY. made at public auction to the highest bidder therefor, at twelve o'clock noon, at the railroad station upon said railroad . of the Memphis & Charleston Railroad Company, in the city of Memphis, in the state of Tennessee, on a day to be named by the Special Master herein appointed, in his notice of sale; that before making said sale, the Special Master shall pub- lish a notice thereof once a week for at least four weeks prior to such sale, in one newspaper, printed, regularly issued and having a general circulation in the county of Shelby and state of Tennessee ; in one newspaper, printed, regularly issued and having a general circulation in the county of Madison and state of Alabama; and in one newspaper, printed, regularly issued and having a general circulation in the county of Mon- roe and state of Mississippi, and in the New York Times. And further, that the Special Master making such sale may, either personally or by some person to be designated by him to act in his name and by his authority, adjourn the sale from time to time without further advertisement, but only on the request of the complainant or its solicitors or by order of the court or a judge thereof. It was further ordered, adjudged and decreed that the Special Master shall receive no bid from any one offering to bid for the premises above described, who shall not first deposit with him as a pledge that he will make good his bid in case of its acceptance, the sum of $50,000 in money, or by certified check upon any National Bank or Trust Company in the city of New York, or $100,000.00 par value of bonds secured by the said consolidated mortgage of August 20, 1877. Upon the acceptance of any bid for such property, the pur- chaser shall forthwith deposit with the said Special Master the sum of $50,000.00 in cash, or by certified check upon any National Bank or Trust Company in the city of New York, but any cash which may have been previously deposited by the successful bidder as a pledge that he would make good NOTICES, MOTIONS, ORDERS, ETC. 635 his bid, shall be received on account of the amount so re- quired on the acceptance of his bid. In case any bidder shall fail to make the deposit herein required upon the acceptance of his bid, the Special Master shall then and there again offer the property for sale, without further notice or advertisement. The Special Master shall accept no bid for the mortgaged property unless the same shall be at least equal to the sum of $2,500,000.00. In case such amount above required shall not be bid therefor, the Special Master shall adjourn the sale, and shall apply to the court for further instructions. The deposit received from any unsuccessful bidder shall be returned to him when the property shall be struck down. The deposit received from the successful bidder shall be held and applied on account of the purchase price of the prop- erty for which such bid was made. In case any bidder or purchaser shall fail to make good his bid upon its acceptance by the Special Master, or after such acceptance shall fail to comply with any order of the court relating to payment thereof, or the consummation of the pur- chase, then the sums in cash or bonds deposited by such pur- chaser or purchasers as hereinbefore provided shall be for- feited as a penalty for such failure, and shall be applied towards the expenses of a resale and towards making good any deficiency or loss in case the property shall be sold at a price less than that bid at the prior sale. If the court shall not confirm the sale for which the deposit shall have been made, such deposit shall be returned to the bidder. The complainant. The Farmers' Loan & Trust Company, as trustee, or any holder or holders of any of said bonds, or any party to this suit, may bid and purchase at.any such sale. Upon confirmation of the sale by the court, the purchaser shall make such further payment or payments in cash on ac- count of his bid as the court from time to time may direct. The purchaser may satisfy and make good any part of his 636 SUITS IN EQUITY. bid not required to be paid in cash, by turning in to be can- celed or credited, as hereinafter provided, any bonds or cou- pons payable out of the proceeds upon distribution thereof; and such purchaser shall be credited therefor on account of his bid with such sums as would be payable on such bonds and coupons out of the purchase price if the whole amount thereof had been paid in cash. The court reserves the right to resell the property upon such notice as the court shall direct, in case the purchaser thereof shall fail or omit to make any payment on account of any unpaid balance of the purchase price within thirty days after the entry of an order requiring such payment. All sums of money received by the Special Master shall forthwith be deposited with the designated depository of this court at Memphis, Tennessee, and all bonds received by the Special Master, with The Farmers' Loan & Trust Company; in each case subject to the order of this court; and the cer- tificate of said Trust Company or of the Guaranty Trust Company of the city of New York, that it holds bonds as therein described subject to the order of the party named, and transferred to the order of said Special Master, shall by him be received and accepted in lieu of such bonds, as a deposit at the time of sale and on account of the payment of the pur- chase price bid, with like force and effect as though the bonds therein named had been delivered to such Special Master. The purchaser shall, as part consideration, and in addition to the sum bid, for such property, take the same and receive the deed therefor upon the express condition that to the ex- tent that the assets or the proceeds of assets in the receivers' hands shall be insufficient, such purchaser, his successors or assigns, shall pay, satisfy and discharge (a) any unpaid com- pensation which shall be allowed by the court to the receivers ; (&) any unpaid indebtedness and obligations or liabilities which shall have been duly contracted or incurred by the re- ceivers before delivery of possession of the property sold ; and NOTICES, MOTIONS, ORDERS, ETC. 637 (c) also any unpaid indebtedness or liability contracted or incurred by said defendant Railroad Company in the opera- tion of its railroad, payment whereof was provided for in the order appointing receivers herein, and which is prior in lien or superior in equity to said consolidated mortgage of Au- gust 20, 1877, except such as shall be paid and satisfied out of the income of the property in the hands of the receivers, or out of such other assets upon the court adjudging the same to be prior in lien or superior in equity to said mortgage and directing payment thereof ; provided, however, that no ob- ligation is hereby imposed upon or is required to be assumed by the purchaser to pay or discharge either the statutory lien or the first mortgage bonds, or the second mortgage bonds of the defendant, hereinbefore described, and subject to which such property is to be sold. All pa3rments for any such purpose made by the purchaser in advance of the final accounting and discharge of the re- ceivers, shall be treated as advances and subject to final ad- justment upon such accounting. In the event that the purchaser of such property, after de- mand made, shall refuse to pay any of the before mentioned indebtedness or liabilities, the person holding the claim there- for, upon fifteen days' notice to such purchaser and his suc- cessors and assigns may file his petition in this court to have such claim enforced against said property in accordance with the usual practice of this court in relation to claims of similar character, and such purchaser and his successors or assigns shall have the right to appear and to make defense to any claim, debt or demand so sought to be enforced, and any party shall have the right to appeal from any judgment, de- cree or order made thereon. For the purpose of enforcing the foregoing provisions of this decree, jurisdiction of this cause is retained by this court, and the court reserves the right to retake and resell the prop- erty in case such purchaser or his successors or assigns shall 638 SUITS IN EQUITY. fail to comply with any order of the court in respect to the payment of such prior indebtedness or liabilities, within thirty days after service of a copy of such order. The Special Master, when ordered by this court, shall pub- lish, at least once a week for the period of six weeks, in one or more newspapers published in the city of Memphis, Ten- nessee, a notice requiring holders of any claims to present the same for allowance; and any such claims which shall not »e so presented or filed within the period of six months after the first publication of such notice, shall not be enforceable against said receivers or against the property sold, or against the purchaser or his successors and assigns. Any such purchaser or purchasers, and his or their success- ors and assigns, shall have the right to enter his or their ap- pearance in this court; and he or they or any of the parties to this suit shall have the right to. contest any claim, demand or allowance existing at the time of the sale and then unde- termined, and any claim or demand which thereafter may arise or be presented, which would be payable by such pur- chaser or his successors or assigns or which would be charge- able against the property purchased, in addition to the amount bid at the sale ; and he or they may appeal from any decision relating to any such claim, demand, or allowance. The purchaser of such property shall also take the same subject to the performance by him or his successors or assigns, of all pending contracts in respect thereof, theretofore law- fully made by the receivers. The purchaser at any such sale, and his successors and as- signs, shall have the right, within ninety days after the com- pletion of the sale and delivery of the deed as hereinafter pro- vided to elect whether or not to assume or adopt any lease or contract sold with the railroad and other property and fran- chises; and the purchaser, his successors or assigns, shall not be held to have assumed any of said leases or contracts which he or they shall so elect not to assume. NOTICES, MOTIONS, ORDERS, ETC. 639 It was further ordered, that L. B. McFarland he and he hereby is designated and appointed a Special Master to make the sale hereby ordered and decreed, and to execute and de- liver a deed of conveyance of the property so to be sold to the purchaser or purchasers thereof, on the order of the court, or of a judge thereof, confirming such sale; the court, however, reserving the right to appoint, in term time or at chambers, another person such Special Master, with like pow- ers, in case of the death or disability to act of the Special Master hereby designated or in case of his resignation or fail- ure to act, or removal by the court. It was further ordered and decreed, that within thirty days , from the confirmation of said sale or sales, or such further time as the court may allow on application of the purchaser for good cause shown, the purchaser or purchasers of said property shall complete payment of the entire amount bid to the said Special Master; and that on such payment the said purchaser or purchasers shall be entitled to receive a deed of conveyance thereof from the Special Master and as herein provided, from the Memphis & Charleston Railroad Company, and The Farmers' Loan & Trust Company as trustee under the said mortgage of August 20th, 1877, and to receive pos- session of the property so purchased from the parties holding possession of the same, and upon the execution and delivei-y of such deed, the receivers shall deliver all the premises sold which may be in their possession over to the purchaser or purchasers, his or their successors or assigns, including all income, proceeds of income, bills and accounts receivable, cash and other property received by the receivers in the manage- ment or operation of the mortgaged premises embraced in such conveyance or pertaining thereto; subject, nevertheless, to the condition that the court may retake and resell the prop- erty in case the purchaser or purchasers thereof, his or their successors or assigns respectively, shall fail to pay any bal- ance of the purchase price remaining unpaid by him or them or 640 SUITS IN EQUITY. to comply with any order of this eourt with respect to the payment of any prior indebtedness, obligations and liabilities as hereinbefore provided, within thirty days after the service of copy of such order. It was further ordered and decreed, that the fund to arise from said sale shall be applied as follows: First. To the payment of all proper expenses attendant upon said sale, including the expense, outlays and compensa- tion of the Special Master to make said sale, as such expense, outlays and compensation may be hereafter fixed and allowed. Second. To the payment of the costs of this suit and the compensation of the complainant herein for its services, charges and expense in the execution of its trust under said mortgage so made to it as aforesaid, including its own com- pensation and commissions and its disbursements for solici- tors and counsel fees in the execution of said trust, as such charges, expenses and compensation may be hereafter fixed and allowed by this court. Third. To the payment of the bonds and coupons of the defendant. The Memphis & Charleston Railroad Company, secured by the mortgage foreclosed hereby, with interest thereon to the amount hereinbefore specified, or if the fund be not sufficient to pay the same, then to the payment of same pro rata; that each of the said bonds presented to the Special Master shall, if the holder thereof shall also request, be stamp- ed or endorsed in some way by said Special Master, so as to show the amount that has been paid on account of the same, and on account of the coupon interest due thereon, and be returned so stamped or endorsed to the holder thereof ; that in case of payment in full of said bonds and coupons, with inter- est thereon, the same shall be delivered with pajmient in full stamped thereon by the Special Master, to the purchaser or purchasers at the sale, to be held by said purchasers as a mu- niment of title ; and Fourth. If, after making all the above payments, there NOTICES, MOTIONS, ORDERS, ETC. 64 1 shall be any surplus, the same shall be paid according to the further order of court in that regard. And further, that in case there shall be any deficiency in the amount required to be paid in full of the several amounts directed and allowed to be paid, then the said Special Master shall report to the court the amount of the deficiency, and the plaintiff as trustee shall have judgment against the said de- fendant mortgagor corporation for the amount due, and shall have execution therefor, pursuant to the rules and practice of this court; and It was further ordered and decreed that the defendant, The Memphis & Charleston Railroad Company, and the complain- ant. The Farmers' Loan & Trust Company, be, and they are hereby authorized and directed to execute and deliver, under the direction of the Special Master conveyances executed by them, respectively, by way of confirmation and further assur- ances of title to the said purchaser or purchasers, his, its or their assigns, of all and singular the mortgaged property and premises, and every part and parcel thereof, of every kind and description, and wherever situated, hereby directed to be sold by the Special Master; and that the form of said conveyance and mode of execution thereof shall be settled and approved by the Special Master, or by the court or judge thereof, if any question should arise as to the form and sufficiency thereof, and that such conveyance shall be delivered to said purchaser or purchasers, his its or their assigns, contemporaneously with the deed or deeds of the Special Master ; and It was further ordered and decreed that if none of the said parties defendant shall pay, or cause to be paid, to the Farm- ers' Loan & Trust Company on or before the 31st day of March, 1897, the amounts hereinbefore found to be due and to be paid to the said The Farmers' Loan & Trust Company on or before said 31st day of March, 1897, together with the costs, expenses and allowances in this suit, then, and in that event, the said defendant. The Central Trust Company of New 642 SUITS IN EQUITY. York, as trustee, under the mortgage of said railroad company, bearing date the first day of January, 1884, and known as the general mortgage of said railroad company, or the holders of a majority of the bonds secured by the said general mortgage, may, at any time prior to the sale of the said property and franchises of said Memphis & Charleston Railroad Company, as hereinbefore provided, pay to the said The Farmers' Loan & Trust Company the amounts herein found to be due in re- spect to the said bonds and coupons secured by the said mort- gage, dated August 20th, 1877, hereby foreclosed, together with an amount sufficient to cover all the costs, expenses and allowances of this siiit and thereupon the said The Central Trust Company, or the holders of a majority of the said bonds secured by the said general mortgage, so redeeming shall become subrogated to all the rights of the holders of the said bonds and coupons secured by the said mortgage, dated August 20, 1877, hereby foreclosed, under this decree, in re- spect to the said last mentioned bonds and coupons and the mortgage securing the same. The said The Farmers' Loan & Trust Company shall pay over to the respective holders of the said bonds and coupons secured by the mortgage fore- closed hereby the amounts due upon the said bonds and cou- pons only upon receipt of the said bonds and coupons, which shall thereupon be transferred and delivered by the said The. Farmers' Loan & Trust Company to the party or parties mak- ing such payment, and upon such payment being made to the said The Farmers' Loan & Trust Company, the sale of the said property and franchises of the said Memphis & Charles- ton Railroad Company shall be stayed, and the said stay shall then continue, and said sale shall not then be made, as herein provided, until the further order of this court, upon notice to the said The Farmers' Loan & Trust Company, and said Central Trust Company of New York. It was further ordered that any party to this proceeding NOTICES, MOTIONS, ORDERS, ETC. 643 may apply to the court for further orders and directions at the foot of the decree. Done this February 25th, 1897. (i) The foregoing decree is copied from the record in the case of The Farmers' Loan & Trust Co. vs. Memphis & Charleston R. Co., in the Cir- cuit Court of the United States for the western district of Tennessee. No. 528. Order of Delivery of Property to Reorganized R. R. Co. [Caption.'] Now, this day comes Toledo, St. Louis & Western Railroad Company, by Butler, Notman, Joline & Mynderse, its solici- tors, and presents to the court its petition for an order direct- ing Samuel Hunt, the receiver heretofore appointed of the property of the Toledo, St. Louis & Kansas City Railroad Company, to surrender and deliver to the petitioner, or its duly authorized representatives on August ist, 1900, all and singular the line of railroad, rights, privileges, franchises and other property now in the possession of said receiver, former- ly owned by the Toledo, St. Louis & Kansas City Railroad Company, and purchased and acquired by said petitioner, To- ledo, St. Louis & Western Railroad Company. And also come Samuel Hunt, as receiver of the property of the respondent, Toledo, St. Louis & Kansas City Railroad Company, by Clarence Brown, Esq., his solicitor. Continental Trust Company of the city of New York, by Cary & Whit- ridge, its solicitors, James N. Wallace, by Arthur H. Van Brunt, his solicitor, and Toledo & East St. Louis Railroad Company by Adrian H. Larkin, its solicitors, and all and singular the matters contained in said petition being consid- ered and by the court fully understood, it is Ordered and decreed that said petition be, and the same hereby is, granted, and it is further 644 SUITS IN EQUITY. Ordered and decreed that Samuel Hunt, receiver of the property of the Toledo, St. Louis & Kansas City Railroad Company, upon the filing with him of a certified copy of this order and the exhibition to him of the following deeds (or certified copies thereof) , viz. : First. Frank Shalifer and Merrill Moores, as Special Mas- ters to Toledo, St. Louis & Western Railroad Company. Second. Frank H. Shaffer and Merrill Moores as Spe- cial Masters to Toledo & East St. Louis Railroad Company; and Third. Toledo & East 3t. Louis Railroad Company to Toledo, St. Louis & Western Railroad Company, each of said deeds to be substantially the skme in form as the form of deed annexed to the said petition of Toledo, St. Louis & Western Railroad Company, and on the ist day of August, 1900, surrender and deliver to the Toledo, St. Louis & West- ern Railroad Company, or its duly authorized representative, all and singular the line of railroad, property, rights, privi- leges and franchises formerly belonging to the Toledo, St. Louis and Kansas City Railroad Company, and purchased, acquired and now owned by said Toledo, St. Louis & West- em Railroad Company. It is further ordered and decreed, that the transactions and accounts of the said receivership be closed as of midnight, July 31st, 1900, and that the receiver file his accounts and re- ports of his transactions with all convenient speed thereafter. It is further ordered and decreed, that the said petitioner, • the Toledo, St. Louis & Western Railroad Company, be, and it hereby is, made a party to this cause, as the successor in right and obligation to Morton S. Paton and Richard B. Hartshorne, purchasers, and of James N. Wallace, as their assignee, and that the petitioner be bound by all the proceed- ings taken herein since the seventeenth day of April, 1900, including the order of confirmation of sale made on said last named date. NOTICES, MOTIONS, ORDERS, ETC. 645 It is further ordered and decreed, .that said James N. Wal- lace, be and he hereby is, dismissed from the record as such purchaser and assignee, and discharged from all obligations incurred by him on account of the purchase by said Paton and Hartshorne, of said railroad, equipment, franchises and prop- erty, constituting the mortgaged premises, and on account of the assignment by said Paton and Hartshorne to said Wallace of their said bid and the assumption by him of the rights and obligations of said purchasers. It is further ordered and decreed, that there be paid, out of the funds in the registry of this court, the costs of this case to date, taxes at $ . It is further ordered and decreed, that there be allowed as compensation to Samuel Hunt, the receiver, for his services, herein, the sum of twelve thousand dollars, in addition to the compensation heretofore paid to, and drawn by, the re- ceiver, and that said sum be paid out of any funds in the custody of the receiver, or out of any moneys in the registry of the court. It is further ordered and decreed, that. there be allowed to Clarence Brown, counsel for the receiver herein, for his serv- ices in that behalf, the sum of $4,000.00, in addition to the compensation heretofore paid to and drawn by said counsel, and that said sum be paid, in like manner, out of any funds in the custody of the receiver, or out of any moneys in the registry of the court ; but such sum shall not be paid without a further order of court unless within thirty days from the entry hereof, the purchasers of the mortgaged premises, or the Toledo, St. Louis & Western Railroad Company, substi- tuted for the purchasers herein, shall file with the receiver or the clerk of this court its consent to pa3mient of the sum al- lowed. It is further ordered, adjudged and decreed, that the ter- mination of said receivership and the surrender of possession of the mortgaged premises to said Toledo, St. Louis & West- 646 SUITS IN EQUITY. ern Railroad Company, as assignee of the purchaser herein, shall be without prejudice to the valid obligations of the re- ceiver, which are assumed by the purchaser, and without pre- judice to the rights of any creditor of the receivership, who has heretofore filed or who may hereafter, within such time as may be fixed by the court, file intervening petitions herein upon claims which have been or shall be adjudged to be prior in right to the lien of the first mortgage bonds ; the court re- serving the right to retake and resell the mortgaged premises for the payment of such valid and adjudged prior obligations of the receivership, in the manner provided in the decree of foreclosure and sale heretofore entered herein. (i) This order was made in the case of Continental Trust Co. vs. To- ledo, St. Louis & Kansas City Ry., pending in the Circuit Court of the United States for the northern district of Ohio. No. 529. Decree Confirming Master's Sale and Ordering Conveyance and Possession of a Railroad Property (i). Circuit Court of the United States, Western District of Ten- nessee, Western Division. The Farmers' Loan & Trust Company vs. The Memphis & Charleston Railroad Company, The Central Trust Company of New York and Sam- uel Thomas. Now, on this 26th day of February, 1898, come again the parties by their respective solicitors, and comes the Southern ■In Equity. NOTICES, MOTIONS, ORDERS, ETC. 647 Railway Company, and come also the purchasers, and their petition that the report of Louis B. McFarland, Esq., the Special Master, heretofore filed herein on February 26, 1898, should be approved, and that the sale to the said purchasers, pursuant to the decree of foreclosure, heretofore entered here- in on March 2, 1897, and to the decree supplemental thereto, entered herein on November 24, 1897, pursuant to the man- date of the Circuit Court of Appeals for the Sixth Circuit, of the railroad, property, rights, assets and franchises of the Memphis & Charleston Railroad Company, briefly described in said decree of foreclosure and sale, and in the notice of sale,, should be confirmed and made absolute, came on to be heard ; And it appearing by the report of said Special Master, so filed as aforesaid, that he has fully complied -with the direc- tions in said decree of foreclosure, and in said supplemental decree, as to the sale of said railroad, property, rights, assets and franchises, and that such purchasers have fully complied with the directions of said decree of foreclosure, and of said supplemental decree, as to the sale of the said property; and that such purchasers were the highest, best, and accepted bid- ders for such railroad, property, rights, assets and franchises, sold as an entirety as provided in said decree, and in said sup- plemental decree, and that the same were struck off to the said purchasers for the sum of two million five hundred thou- sand dollars ($2,500,000), subject, however, as recited in said decree of foreclosure, and in said supplemental decree, to a certain statutory lien in favor of the state of Tennessee and to two certain mortgages, as set forth in said decree of fore- closure, and said supplemental decree, and upon the condition that, to the extent that the assets, or the proceeds of assets, in the receivers' hands should be insufHcient, such purchasers, or their successors or assigns, should pay, satisfy and dis- charge (a) any unpaid compensation which should be allowed "by the court to the receivers; (b) any unpaid indebtedness 648 SUITS IN EQUITY. and obligations or liabilities which were duly contracted or incurred by the receivers before delivery of possession of the property sold; and (c) also any unpaid indebtedness or lia- bility contracted or incurred by said the Memphis & Charles- ton Railroad Company in the operation of its railroad, which is prior in lien or superior in equity to the consolidated first mortgage of August 20, 1877, except such as has been paid, and satisfied out of the income of the property in the hands of the receivers, or out of such other assets upon the court ad- judging the same to be prior in lien or superior in equity to said mortgage, and directing the payment thereof, no obliga- tion, nevertheless, being imposed upon, or being required to be assumed by, the said purchasers, their successors or assigns, to pay or discharge either the said statutory lien, or the said first mortgage bonds, or the said second mortgage bonds, of the Memphis & Charleston Railroad Company, hereinbefore referred to, and subject to which the property was sold, and subject also to all and singular the terms, condi- tions, reservations and obligations in said decree of fore- closure, and in said supplemental decree, set forth ; and it also appearing that the said purchasers have made the payments thus far obligatory upon them ; And it further appearing to the court by the said petition, that besides the cas'h payment made by the said purchasers, they, being the lawful holders of 2,257 o^ the consolidated first mortgage bonds of said the Memphis & Charleston Rail- road Company, for the principal sum of $1,000 each, with all unpaid coupons thereon, out of a total issue of 2,264, of such consolidated first mortgage bonds, have deposited with said Special Master the certificate of the Guaranty Trust Com- pany of New York, that it holds the said 2,257 of such con- solidated first mortgage bonds, subject to the order of the Special Master, and entitling him or his successor, on surren- der thereof, to receive the same, to be canceled or credited, as provided in the said original decree of foreclosure and sale, NOTICES, MOTIONS, ORDERS, ETC. 649 and in said supplemental decree, heretofore entered herein, for and on account of the said bid for the said property, rights, assets and franchises, mentioned in the said decree, and in said supplemental decree, and sold thereunder as afore- said ; And it being shown to the satisfaction of the court that the recitals in the said report of the Special Master, and in said petition of the purchasers, are true, and no sufficient cause be- ing shown against the report of the said Special Master, or the granting of the petition of the said purchasers. Now, on motion of Messrs. Estes & Fentress, solicitors for the complainant, the Farmers' Loan & Trust Company, and of Francis L. Stetson, Esq., of counsel for the purchasers, the Central Trust Company of New York, appearing by Adrian H. Joline, Esq., as its counsel, Samuel Thomas, by W. A. Henderson, Esq., as his counsel, and the Southern Railway* Company, by Francis L. Stetson, as its counsel, and all con- senting that the said motion for the confirmation of said sale and of the said report of said Special Master made thereon, may be now heard and determined, and all questions there- under adjudicated, it is hereby Ordered, adjudged and decreed as follows, to wit : That the said report of the Special Master be spread at large upon the record, and in all things be approved, and that the sale made by said Special Master to the said purchasers, as joint tenants and not as tenants in common, of all and singular the railroad, equipments, property, rights, assets and: franchises of the, Memphis & Charleston Railroad Company, as described in and by the said decree of foreclosure, entered in this cause on March 2, 1897, and in and by the said sup- plemental decree, entered herein on November 24, 1897, at and for the sum of twO' million five hundred thousand dollars ($2,500,000) by them bid, be, and the same hereby is, in all things ratified, approved, confirmed and made absolute, sub- ject, however, to all the terms and conditions of said decree, 650 SUITS IN EQUITY. and of said supplemental decree; and subject, also, to all and singular the conditions of purchase, as recited in said decree of foreclosure, and in said supplemental decree; and the pur- chasers agreeing to take the property, so sold as aforesaid, subject to the performance by them, or by their successors or assigns, of all pending contracts in respect thereof, thereto- fore, lawfully made by the receivers ; the said purchasers, and their successors or assigns, having, nevertheless, the right, within ninety days after the completion of the sale and de- livery of the deed, as hereinafter provided, to elect whether or not to assume or adopt any lease or contract sold with the railroad and other property and franchises, neither they, nor their successors nor assigns, to be held to have assumed or adopted any of said contracts, or leases, which they shall so elect not to assume or adopt. And this court expressly re- 'serves, for future adjudication, with power thereby to bind the property sold, all liens, claims and equities specified in and re- served by the said final decree of foreclosure, and said sup- plemental decree, so as aforesaid entered on March 2, 1897, and on November 24, 1897, respectively. And it further appearing to the court that the purchase of said railroad, property, rights, assets and franchises by said purchasers, was for the purpose and with the intent of having the title of all the said railroad, property, rights, assets and franchises vested in, and held by, the Southern Railway Com- pany, a corporation created and existing under the laws of the state of Virginia, by an Act of Assembly, approved Feb- ruary 20, 1894, as to all said railroad, real estate and fran- chises, within the states of Tennessee and Alabama, and also as to all equipment, chattels and choses in action sold, wher- ever situate, said corporation having complied with all con- ditions of law precedent to the transaction of business within the said states; and vested in and held by the Memphis & Charleston Railway Company, a corporation to be organized by that name in the state of Mississippi, as to all of the rail- NOTICES, MOTIONS, ORDERS, ETC. 651 road, real estate and franchises, within the state of Mississippi. And it further appearing that the said purchasers have de- clared that such purchase was made by them for the use, benefit and behoof of the Southern Railway Company, its successors and assigns, as to all such railroad, real estate and franchises, within the states of Tennessee and Alabama, and also as to all said equipment, chattels and choses in action, wheresoever situate; and for the use, benefit and behoof of a corporation, its successors and assigns, to be organized under the laws of the state of Mississippi under the name of Memphis & Charleston Railway Company, as to all of said railroad, real estate and franchises, within the state of Mis- sissippi ; and that said purchasers have requested that all such railroad, real estate and franchises, within the states of Ten- nessee and Alabama, and all said equipment, chattels and choses in action, wherever situate, may be conveyed and as- signed to, and vested in, said Southern Railway Company, its successors and assigns ; and thdt all such railroad, real estate and franchises within the state of Mississippi may be conveyed and assigned to, and vested in, themselves or their successor, the Memphis & Charleston. Railway Company, its successors and assigns ; so that, upon the execution and delivery of such conveyance, said Southern Railway Company, its successors and assigns, and said purchasers or their successor, the Mem- phis & Charleston Railway Company, its successors and as- signs, severally and respectively, shall have, possess and be invested with, all the estate, right, title and interest in and to such railroad and all other property, with their appurtenances, and all the franchises, rights and privileges, described in and sold under the said final decree of foreclosure and sale, and said supplemental decree, of this court, as stated in said report of sale ; and that this court will accept said Southern Railway Company as the purchaser, in its corporate name and behalf, of all the said railroad, real estate and franchises,, within the states of Tennessee and Alabama, and also of all equipment, 652 SUITS IN EQUITY. chattels and choses in action sold under said decrees, wherever situate; and that it will accept said Memphis & Charleston Railway Company, when organized, its successors and as- signs, as the purchaser, in its corporate name and behalf, of all of the railroad, real estate and franchises, within the state of Mississippi, so sold under said decree and said supplemental decree; and that such corporations, severally and respectively, shall be obliged to complete the said bid and pay for all such property the balance remaining of such accepted bid, and in all other respects to comply with the orders or decrees now, or to be hereafter, entered obligatory on such purchasers; aiid it is further Ordered, adjudged and decreed that the said sale, so report- ed by said Special Master, and the purchase of. the railroad, ■property, rights, assets and franchises by said purchasers, shall be, and the same hereby is confirmed. And the court further reserves full power from time to time to enter orders binding upon the said Southern Railway Company, as purchaser, requiring it and its successors or as- signs, to pay, satisfy and discharge (a) any unpaid compen- sation which shall be allowed by the court to the receivers; (fc) any unpaid indebtedness and obligations or liabilities which shall have been duly contracted or incurred by the receivers before delivery of possession of the property sold; and (c) also any unpaid indebtedness or liabilities contracted or incurred by said the Memphis & Charleston Railroad Com- pany in the operation of its railroad, which is prior in lien or superior in equity to such consolidated first mortgage of August 20, 1877, except such as shall be paid and satisfied out of the income of the property in the hands of the receivers or out of such other assets, upon the court adjudging the same to be prior in lien or superior in equity to said mortgage, and directing the payment thereof; all payments for any such purpose, made by the purchasers, or their successors or as- signs, in advance of the final accounting and discharge of the NOTICES, MOTIONS, ORDERS, ETC. 653 receivers, to be treated as advances, and subject to final ad- justment upon such accounting; and to pay into the registry of this court all such sums as have been ordered or may be ordered by this court for the payment of said claims and lia- bilities, which are entitled to preference in payment out of the proceeds of sale prior to the bonds secured by said con- solidated first mortgage of the Memphis & Charleston Rail- road Company; provided, however, that upon publication by the Special Master, when ordered by the court, as provided in said decree, of a notice, requiring holders of any claims to present the same for allowance, any such claims, which shall not be so presented or filed within the period of six months after the first publication of such notice, shall not be enforce- able against the property sold, or against the purchasers, or* their successors or assigns, and also to pay such sums in cash as may be required in order to pay all costs and expenses of the sale, the compensations of the Special Master, and all charges, compensations, allowances and disbursements, pay- able out of the purchase price bid for the premises, as the same shall be fixed and allowed by the court, and also such sums of cash, as shall be payable out of the net proceeds of sale in re- spect of each of the seven outstanding consolidated first mort- gage bonds, with all unpaid coupons thereon, if and when payment thereof shall hereafter be adjudged by the court. But no obligation, however, is imposed upon, or required to be assumed by, the purchasers, or by their successors or assigns, to pay or discharge either the said statutory lien, or the said first mortgage bonds, or the said second mortgage bonds, of the Memphis & Charleston Railroad Company, here- inbefore referred to, and subject to which the property was sold; and it is further Ordered, adjudged and decreed that the said Special Mas- ter be, and hereby is, authorized and directed, on or after the 26th day of February, 1898, to sign, seal, execute, acknowl- edge and deliver a deed or deeds of conveyance to the South- 654 SUITS IN EQUITY. ern Railway Company, conveying to it, its successors or as- signs, forever, subject to the terms and conditions of said decrees, and of this decree, all and singular the said railroad, ,real estate and franchises, within the states of Tennessee and Alabama, and also all estate, equipment, personal property and choses in action wherever situate; including also all in- come, proceeds of income, bills and accounts receivable, cash and other property, received by the said receivers, and all causes of action, and judgments, by them acquired or obtained in the management or operation of the said mortgaged prem- ises, to be embraced in the conveyance thereof or pertaining thereto ; and also any and all property of the said Railroad Company, appurtenant to the premises and required for use jn connection with or for the purpose of said railroad or the business of said railroad company and vested in or standing in the name of the said receivers, or to which the said re- ceivers in any manner have acquired title ; and a deed or deeds of conveyance to the purchasers, or to their successor, the Memphis & Charleston Railway Company, conveying to them, or to it, their or its successors or assigns, forever, subject" to the same conditions, all and singular the railroad, real estate and franchises, within the state of Mississippi, so as aforesaid sold under the said decree, and said supplemental decree, of this court, free from any and all equity of redemption of the said the Memphis & Charleston Railroad Company, or any one claiming by, under or through it except the said statutory lien, and the said two prior mortgages, recited in such decree, and supplemental decree; together with all the corporate es- tate, equity of redemption, rights, privileges, immunities and franchises of said the Memphis & Charleston Railroad Com- pany, and all the tolls, fares, freights, rents, income, issues and profits of the said railroads, and all interest and claims and demands of every nature and description, and all the reversion and reversions, remainder and remainders thereof, at any time owned or acquired by, and now ih the posses- NOTICES, MOTIONS, ORDERS, ETC. 655 sion of, said the Memphis & Charleston Railroad Company, or the receivers thereof; the form of said conveyance being now submitted to and approved by this court, and filed here- with. In order to facilitate the recording thereof, several counter- parts of such deed, or deeds, may be executed, acknowledged and delivered by the Special Master, all or any one or more of which may be recorded, and any one or more of such counterparts, when executed, acknowledged and delivered, severally or collectively, shall be deemed to be an original, and for all intents and purposes constitute a single instrument. On March i, 1898, or as soon thereafter as practicable, on exhibition of any such deed, or deeds, executed and delivered by the Special Master, as herein ordered, and upon the re- quest of the grantees thereunder, or upon the several requests of the said Southern Railway Company, or of the purchasers, or of said Memphis & Charleston Railway Company, when organized, the receivers of this court are authorized, directed and required to let the said Southern Railway Company and the said purchasers, or the said Memphis & Charleston Rail- way Company, severally and respectively, its or their succes- sors or assigns, into the possession of the premises therein conveyed ; and the receivers, or any party in the cause having possession thereof, shall deliver over to the said Southern Railway Company, and to the said purchasers, or to their suc- cessor, the Memphis & Charleston Railway Company, sev- erally and respectively, their or its successors or assigns, the possession of all and singular the railroad and property, de- scribed in and conveyed to them, respectively, by such deed or deeds, and sold as aforesaid, and to the Southern Railway Company all income, proceeds of income, bills and accounts receivable, cash and other property received by the receivers, and all causes of action, and judgments, by them acquired or obtained in the management or operation of the mortgaged premises, to be embraced in such conveyance thereof or per- 656 SUITS IN EQUITY. taining thereto; and also any and all property of the said railroad company, appurtenant to the premises and required for use in connection with or for the purposes of said railroad or the business of said railroad company, invested in or stand- ing in the name of the said receivers, or to which the said receivers in any manner shall have acquired title; and it is further Ordered, adjudged and decreed that by way of further as- surance and confirmation of title to such Southern Railway and to such Memphis & Charleston Railway Company, sev- erally and respectively, the receivers of this court, and also the Memphis & Charleston Railroad Company, by its proper officers and under its corporate seal, and the Farmers' Loan & Trust Company, trustee, shall, under the direction of the Special Master, upon request of said Southern Railway Com- pany, and of the said purchasers, or of their successor, the said Memphis & Charleston Railway Company, severally and respectively, sign, seal, execute, acknowledge and deliver to said two corporations, severally and respectively, all proper deeds of conveyance, transfer, release and further assurance, of all and singular the mortgaged property and premises, and every part and parcel thereof, of every kind and description and wherever situate, so as aforesaid sold under the said de- cree, and said supplemental decree, of this court, and em- braced in the deed of the Special Master, so as fully and completely to transfer to, and to vest, severally and respective- ly, in the Southern Railway Company and in the Memphis & Charleston Railway Company, when organized, and their successors and assigns, the full legal and equitable title, as above provided, to such railroad, property, rights, assets and franchises, sold or intended to be sold under the decree and supplemental decree of this court. The Special Master shall keep on deposit to his order with the Guaranty Trust Company of New York all of the said 2,257 consolidated first mortgage bonds, with all unpaid cou- NOTICES, MOTIONS, ORDERS, ETC. 657 pons thereon, so that the same may be stamped with the credit or the payment on account thereof upon the bid of such pur- chasers, after the amount thereof shall be adjudged by this court ; such bonds and coupons thereafter to be returned to the said purchasers, their successors or assigns. The court reserves full power, notwithstanding such con- veyance and delivery of possession, to retake and resell the property this day confirmed, if the purchasers, or their suc- cessors or assigns, shall fail or neglect fully to complete such purchase and to comply with the orders of the court in respect to full payment and performance of said bid, or to pay into court, in accordance with such decree, of sale and supplemen- tal decree, all such sums of money hereafter ordered by the court to be paid into its registry to discharge any and all such debts, liens or claims, as it may adjudge and decree should be paid out of the proceeds of sale in preference to the bonds secured by the mortgage of the Memphis & Charleston Rail- road Company herein foreclosed. All payments for any such purpose made by the purchasers, or their successors or assigns, in advance of the final accounting and discharge of the re- ceivers, shall be treated as advances, and subject to final ad- justment upon such accounting. The Special Master shall deposit, subject to the order of this court, any cash paid to him by the purchasers, their suc- cessors or assigns, in the registry of this court at Memphis, Tennessee, to abide the further order of the court herein, and shall deposit all bonds and attached coupons, received by him or paid over to him by the purchasers, their successors or as- signs, with the Guaranty Trust Company of New York, so that the same may be stamped with the credit or payment on account thereof upon such bid, after the amount thereof shall be adjudged by the court, such bonds and coupons thereafter to be returned to the said purchasers, their successors or as- signs; and it is further Ordered, adjudged and decreed by the court that all of the 658 SUITS IN EQUITY. right, title and interest of the Memphis & Charleston Railroad Company, and of all the other parties to this cause, in and" to the property reported as sold by the Special Master to the said purchasers, be, and the same hereby is, divested out of the Memphis & Charleston Railroad Company, and out of all of the other parties to this cause, excepting the. Southern Rail- way Company; and that all of the railroad, real estate and franchises, within the states of Tennessee and Alabama, and also all of the equipment, chattels and choses in action, so sold as aforesaid, wherever situate, be, and hereby the same are, vested in the Southern Railway Company, its successors and assigns ; and that all of the railroad, real estate and franchises, within the state of Mississippi, be, and hereby the same is, vested in the said purchasers, and in their successor, the Mem- phis & Charleston Railway Company, a corporation of Mis- sissippi, when organized, its successors and assigns;. and upon the application of the Southern Railway Company, its succes- sors or assigns, and of the purchasers, or of the said Memphis & Charleston Railway Company, or its successors or assigns, or of any of them, the clerk of this court will furnish to the applicant certified copies of this decree, for registration as a muniment of title. (i) This decree was entered in the case of The Farmers' Loan & Trust Co. vs. Memphis & Charleston R. Co., in the Circuit Court of the United States for the western district of Tennessee. Decree of confirmation may be made in vacation Central Trust Co. vs. Sheffield, etc. Ry. Co., 60 Fed. Rep. 9. No. 530. Decree Quieting Title. [Caption.'] This cause came on for hearing this 6th day of April, 1899, before the Honorable C. D., Judge, presiding, and was heard upon the bill, answers, exhibits, agreements of parties. NOTICES, MOTIONS, ORDERS, ETC. 659 proof in the cause and arguments of counsel, and it appearing that the bill was filed to remove a cloud upon plaintiff's title to the west one-half ( 1-2) of the south one-half ( 1-2) of lot No. fi'fty-two (52), and the west one-half (1-2) of the north forty- five (45) feet of lot No. fifty-four (54) on Chestnut street, in the city of , county, , which cloud was caused by the recovery by defendants of a judgment against A. J. and G. W., the former owners of said real estate, in the Chancery Court of , , issuance of an execution upon said judgment, the levy of same by the sheriff of county, , upon the aforesaid real estate, a sale of the same by the sheriff, at which sale defendants, J. M. and R. M., became the purchasers, and on the day of , a deed was executed to them by the sheriff of county, , and is of record in the register's office of county, , in Book "N," Volume "6," page 428, et seq., and because it appears to the court that at no time since the recov- ery of defendants' said judgment, have the said A. J. and G. W., been seized with a beneficial interest in said real estate, but that the same is now the property of plaintiffs, who are entitled to the relief prayed for in their bill, it is therefore ordered, adjudged and decreed that plaintiffs are entitled tO' have the cloud caused by the execution and regis- tration of the deed aforesaid removed from their title and the said defendants and their privies in estate or blood are hereby perpetually enjoined from setting up title to said real estate by reason and sale by the sheriff of said county, and the purchase at said sale by defendants, J. M. and R. M. ; or by reason of the execution to them by the sheriff of county of the said deed of July 25, 1898, and registra- tion of same; the court being of the opinion and so decrees that said defendants took nothing by said deed, but that said sale was invalid and void. The plaintiffs will be entitled to a copy ol this decree as a 66o SUITS IN EQUITY. muniment of title upon the payment by them to the clerk of his fees for a certified copy. The defendants will pay all the costs of the cause for which an execution will issue. No. 531. Decree Subjecting Absent Defendant's Property to Payment of Judgment. [Caption.] This cause came on to be heard on the day of ■ , 1894, on the bill of complaint and testimony, [or as may be\ the said defendants being represented by counsel. Upon the hearing of the case the court thereupon finds that all of the defendants have been duly notified of the pendency and prayer of the bill, and have failed to answer the same ; and the court further finds from the testimony that the defendant, E. F., has in his possession and belonging to C. D. a large sum of money ; that the said plaintiff is entitled to have sufficient of the said money applied to the payment of the judgment and costs fully described in his bill in this cause, subject to any claim which may have been set in any suit in other courts prior to the filing of the bill in this cause ; and that there is now due to the said plaintiff, on the said judg- ment and costs, the sum of dollars, which, with interest ' dollars, and clerk's additional costs in said cause, to wit, dollars, makes a total of dollars due the said plaintiff. It is therefore ordered, adjudged, and decreed that the said defendant, E. P., pay into the registry of this court the said sum of dollars, and in addition thereto the costs in this cause, taxed at dollars, the sum so paid to be credited on any sum which may be found due from him to the said C. D., or to the defendant, G. H., and that the said C. D. and G. H. be forever enjoined from collecting the amount so paid by said E. F. from said E. F., or from re- NOTICES, MOTIONS, ORDERS, ETC. 66x fusing to credit the said sum upon any amount which may be found due from the said E. F. to the said C. D., as afore- said, provided, however, that this decree shall not interfere with the payment to any other creditor of the said CD., who has brought suit to subject the same, prior to the filing of the bill in this cause. No. 532. Order of Distribution. \_CapHon.'\ On motion of R. X., counsel for the plaintiff, and it ap- pearing to the court that in accordance with a decree here- tofore entered, the defendant, E. F., has paid into the registry of this court the sum of dollars in obedience thereto, and the court proceeding to distribute the same, orders and directs that after payment of the following sums, to wit [set forth the items], that the sum of dollars shall be paid to the plaintiff, A. B. And it is further ordered that the sum of dollars be duly credited on the judgment and costs in the case of A. B. vs. C. D., No. , in the circuit court of the United States for the district of , in full satisfaction of the same. No. 533. Decree Awarding Perpetual Injunction Restraining Munici- pality from Interfering with Telephone Company. [Caption.] This cause came on to be heard on this day of , A. D. , before the Hon. D. C, holding the Circuit Court of the United States for the District of , Divi- sion, upon the pleadings and proof on file, including all ex- 662 SUITS IN EQUITY. hibits to the pleadings and depositions, and all stipulations and argument of counsel therein. From the consideration of all of which the court is of the opinion, and doth adjudge and decree, as follows : First. That the matter in dispute in this cause, exclu- sive of interest and costs, exceeds the sum or value of $2,- 000.00. Second. That the complainant, A. B. Telephone Company, is vested with the right of maintaining and operating a tele- phone system or telephone exchange on or over the streets, avenues, alleys and squares of the city of , and has the right to go upon and use said streets, avenues, alleys and isquares not only for the purpose of maintaining its long distance toll line, but also for the purpose of constructing, maintaining and using a local telephone exchange, and is en- titled to the injunctive relief prayed for in the bill. Third. That the preliminary injunction granted on May , be made perpetual, and the defendant board of mayor and aldermen of the town of , their agents, marshals, police, servants and attorneys, and each of them be, and they hereby are, perpetually enjoined and restrained from interfer- ing with complainant, its officers, agents or employes in erect- ing poles, stringing wires or cables, or placing telephone in- struments, either for the purpose of repairs, or to make con- nections with new subscribers, within the corporate limits of said city of , or from interfering with complainant in the construction, maintenance or operation of its toll lines or tele- phone exchange in the said city of . Fourth. That the defendant, board of mayor and aldermen of the city of — — , pay all the costs of this cause, for which execution will issue. NOTICES, MOTIONS, ORDERS, ETC. 663 NO. 534. Decree Confirming Sale Ordering Deed and Writ of Pos- session. \_Caption.^ This cause came on to be heard on the report of the Special Master of sale, made pursuant to order of day of , and said report of sale being unexcepted to, is in all things confirmed. It is therefore ordered, adjudged and decreed by the court that all the right, title, interest and claim of the complainants and the defendant in and to the real estate, personal property, rights, privileges and franchises sold by the Special Mas- ter, be and the same is divested out of the complainants and defendants, and each of them, and that the same be vested in the purchaser, W. W., trustee, his heirs and assigns, for- ever, in fee simple. And it appearing to the court that the purchaser has paid the purchase price and the cost of the cause and expenses of the sale, the Special Master is directed to make the purchaser a deed in accordance with this decree, and if necessary, writ of possession will issue to put the purchaser in possession. 664 SUITS IN EQUITY. PROCEEDINGS BEFORE A MASTER. No. 535. Motion for Appointment of a Master to Report on Evidence. [Caption.] Now comes the plaintiff and moves the court to appoint a Master in said cause to examine the testimony taken and to be taken therein, and to make therefrom a special finding of facts upon the issues joined between the parties, and to report the same and his conclusions of law thereon to the court, the ground of said motion being that said testimony is very voluminous, requiring much time for its consideration. W. W., its Attorney. No. 536. Motion to Refer Intervention to Special Master. [Caption.] Now comes B. R, intervener, by counsel, and moves the honorable court that his petition of intervention filed in the papers of this cause, be referred in all things to J. N., Esq., Master in Chancery, for his axamination and report; and intervener with respect so prays. D. H., Attorney for B. F. No. 537. Order Appointing Master to Report on Evidence, (i) [Caption.] On motion of the plaintiff for the appointment of a Master in said cause, it is ordered that B. R., because of his experience PROCEEDINGS BEFORE A MASTER. 665 in matters of accounting, be and he is hereby appointed Spe- cial Master in said cause to examine the record and the evi- dence now on file or hereafter taken therein, and to make a special finding of fact on the issues joined between the par- ties and to report the same to the court and his conclusions of law thereon. Done at Chambers at the city of , this day of E. S., Judge. (l) Qerks of district or circuit courts cannot be appointed masters ex- cept for special cause named in the order. Act of March 3, 1879, 20 Stat at 410; see Fischer vs. Hayes, 22 Fed. Rep. 92. If the order does not assign special reason his acts are valid. North- western Mut. Life Ins. Co. vs. Seaman, 80 Fed. Rep. 357 ; s. c. on. appeal, 86 Fed. Rep. 493. No. 538. Order Appointing Special Master to Report on Strike. » [Caption.] In this cause it is ordered that B. R. be appointed Special Master to hear proof and report whether: First. The strike complained of in the bill is over, and Second. Whether there has been any settlement of this suit or the disputed matter involved so that the bill should now be dismissed, and if so, at whose costs. No. 539. Order Appointing Master to Determine Amount Due. [Caption.] This cause came on this day for orders, whereupon it was adjudged and decreed that it be referred to J. B. as Special Master, who will ascertain from the proof now on file and any that may be submitted : 666 SUITS IN EQUITY. First. The amount now due complainant by the defendants or either of them. Second. The amount that the defendants have paid the complainant association and on what account. Third. The amount of fee proper to be paid the complain- ants for services herein. No. 540. Oath of Special Master. [Capizon.] I, C. G., having heretofore been appointed Special Master in the above-entitled cause, do solemnly swear that I will faithfully and impartially perform my duties as such master, agreeable to the order of the court, to the best of my ability and understanding. So help me God. C. G. Sworn to before me and signed in my presence this day of ,1894. ' B. R., Clerk of Circuit Court of tbe United States [&«/.] for the district of . No. 541. General Notice for Proceedings Before Master. To X. Y., Counsel for PlaintiflF [or, Defendant]. [Capiton.] By virtue of an order of reference in the above-stated case I do appoint to consider the matters thereby to me referred Saturday, the day of , at 10 o'clock a. m., at my office in the building, , at which time and place all parties concerned are to attend. Dated, day of , 1894. C. G., Special Master. PROCEEDINGS BEFORE A MASTER. 667 No. 542. Master's Warrant or Summons. Circuit Court of the United States for the District of . A. B., Plaintiff, "1 vs. \ In Equity. C. b., Defendant.] To A. B. and C. D. : In pursuance of the authority contained in a decretal order made in this cause by the Hon. J. W., Circuit Judge, at a stated term of this court held at the United States Court House in the city of , on the day of , A. D. , 1, B. R., ofte of the Masters of said court, do hereby summon you, A. B., complainant, and C. D., defendant, to appear before me, the said B. R., at my ofifice at No. Broadway, in the city of , in the District of , on the day of , A. D. , at 2 o'clock in the after- noon, to attend a hearing before me, the said Master, of the matters in reference in the said cause to be had by virtue of the decretal order aforesaid. And hereof fail not at your peril. B. R., Master. Dated the day of . Underwriting: To take the account in the suit. B. R., Master. No. 543. Order to Master to Report Testimony. [Caption.] On motion of complainant, it is ordered that the Master heretofore appointed in said case do report the testimony taken on which his said report was made, and that this order take effect as of the date of the order appointing said Master. And the action of Master in heretofore filing said evidence is hereby affirmed. 668 SUITS IN EQUITY. No. 544. Interrogatories for Examination of Witnesses Before a Master. Interrogatories to be exhibited on the part of the said plaintiff for the examination of witnesses to be produced, sworn, and examined before C. G., one of the masters of said district [or, circuit] court, pursuant to a decretal order made and entered in this cause on the day of , 1894. Inrsi Int. State if you know the parties, plaintiff and de- fendant, in the above-entitled cause, or either (or any), and which of them, and how long have you known them re- spectively, or such of them as you do know; declare the truth and your utmost knowledge, remembrance, and belief herein. [Continue with other interrogatories, and for the last one say:'\ Int. Do. you know, or can you set forth, any other iriatter, or thing, which may be a benefit or advantage to the parties at issue in this cause, or either of them ; or that may be material to the subject of this your examination, or the matters in question in this cause? If so, please state the same fully and at large in your answer. No. 545. Report of Special Master (i). \Caption.\ To the Hon. Judges of said Court : The undersigned, this day appointed Special Master in the above stated cause to report to the court whether or not the strike of May 20, 1901, referred to in the bill of complaint herein, is ended, and whether the questions in controversy which brought about said strike have been adjusted, respect- fully submits the following report : I have taken the testimony of several witnesses, including PROCEEDINGS BEFORE A MASTER. 669 the defendant, C. D., and of the manager of said complainant company and report the following : First. That all, except two or three of the men who went out from the factory of complainant on the 20th day of May, 1 90 1, have returned to work, and are now at work in said factory; that said return to work was voluntary on the part of said employees and without any inducement offered by complainant's officers, or agents, except the statement that they were at liberty to return to work, and that said strike of May 20, 1 90 1, is over. Second. I find that there has been no adjustment, or settle- ment, of the controversy which was the immediate cause of said strike, but that said strikers returned to work and are now at work upon the same terms as to hours and wages as prevailed before the strike. The testimony taken upon the reference is filed in cause No. . Respectfully submitted, A. B., Special Master. Dated . (i) See equity rule 76. No. 546. Master's Report (i). [Capiton.] To the Honorable Judges, etc. : In pursuance of a decretal order made and entered in this cause, and bearing date of the day of , 1894, at a stated term of this court, held at [place of holding couri], in the city of , in the said district, by which it was referred to C. G., of , one of the masters of this court, to take and state an account of [according to the decretal order\ I, C. G., a master in said court, do respectfully report that I have proceeded to investigate the matters so referred to 670 SUITS IN EQUITY.. me, and that pursuant to a summons duly issued, I have been attended by the parties, plaintiff and defendant, and their respective counsel in the above cause [or as the fact may be], and that, after taking due proofs, I find and report that [here set forth the findings of the master]. I do, therefore, respectfully report that the said defendant should be decreed to pay the said plaintiff the sum of dollars, besides costs to be taxed. I respectfully refer to schedules A, B, C, hereto annexed, as making a part of my report. All of which is respectfully submitted. Dated . C. G., Master. (i) See Rule 76 in Equity. No. 547. Notice Accompanying Draft of Master's Report. [Caption!] Messrs. X. & X., Solicitors for Plaintiff, and Messrs. Y. & Y., Solicitors for Defendant. Sirs: You are hereby notified that I have prepared the draft of my report upon the matters referred to me as mas- ter, by the interlocutory decree herein, dated the day of , and that a copy of such draft report accompanies and is annexed to this notice, and is herewith served upon you ; you are also hereby notified that I shall sign and file said draft report as my report herein, unless alterations are made by me therein, upon suggestions of counsel for either party hereto, and that I appoint the day of , at my office. No. street, in the city of , at 11 o'clock in the forenoon of said -day, for counsel for either party hereto to PROCEEDINGS BEFORE A MASTER. 67I present to me any suggestions of amendments to or altera- tions of said draft report, and to file with me written objec- tions or exceptions thereto, if any they have to the same. Yours, etc., C. G., Master. Dated at • No. 54a Exceptions to Master's Report. [^Caption.^ Exceptions taken by the plaintiff \or, defendant] to the report made herein by C. G., one of the masters of this court, to whom this cause was referred by an order of this court made and entered on the day of , 1894. First Exception : For that the said master, in his said report, etc. [state the objection], whereas the said master should have, etc. [state what it is claimed ought to have been reported']. Second Exception : For that, etc. R. X., Solicitors for, etc. No. 549. Exceptions to Report of Special Master. [Caption.] For defendants it is urged, for exception to the said re- port of Special Master: First. That it assumes that there is an3rthing due complain- ant on the obligations of defendants, because those obliga- tions show on their face a reservation of usurious interest. This usury is condemned both by the laws of Tennessee and Alabama, and in Tennessee avoids the contract and forfeits the principal. The evidence shows that the obligations are Tennessee contracts. Second. The evidence shows that the interest allowed by 6/2 SUITS IN EQUITY. the Special Master is usurious, and binds neither of the de- fendants. Third. C. D. had no power to make any contract as to the stock in company of complainants, and her property cannot be charged for the same, she being a married woman when this contract was made. Fourth. The Special Master, if he is permitted to' allow in- terest at all on the principal, cannot allow beyond 6 per cent, per annum, and without rests. He has allowed interest at the rates claimed by complainant, and this is error. Fifth. Defendants prove that on the loan one thousand dol- lars were paid. He has not yielded to this proof, and has not allowed that credit. Sixth. C. D. cannot be charged with interest, premiums, fines or dues on the stock. There is no evidence that she ever applied for stock in complainant, and if she did it was a con- tract she was incapable of making, and is not bound by it. Seventh. The Master cannot charge either of defendants with taxes paid by the complainant on the property or with what they paid M. N., yet he has done so. Eighth. C. D. cannot be charged with attorney's fees. It was a contract she had no power to make. R. Y., for Defendants. No. 550. Exceptions to Report of Special Master. Circuit Court of the United States, District of Division. The A. B. Trust Company of — Trustee, Complainant, vs. • No. 887. The C. & D. Railroad Company et ah] S. M., receiver of the C. & D. Railroad, excepts to so much of said report as finds : PROCEEDINGS BEFORE A MASTER. 673 First. That the Second National Bank of has a first lien or charge, or any lien or charge, upon the real estate mentioned in said report superior to the lien of the mortgage of the C. & D. Railroad Company to the E. F. Trust Company of , trustee, dated November 9, 1895, or to the lien of the mortgage of said railroad company to the 'A. B. Trust Company of , trustee, dated , Second. That H. W. has a first lien or charge, or any lien or charge, upon the real estate mentioned in said report su- perior to the lien of the mortgage of the C. & D. Railroad Company to the E. F. Trust Company of , trustee, dated , or to the lien of the mortgage of said railroad company to the A. B. Trust Company of , trustee, dated . Third. That L. P. has a first lien or charge, or any lien or charge, upon the real estate mentioned in said report su- perior to the lien of the mortgage of the C. & D. Railroad Company to the E. F. Trust Company of New York, trustee, dated , or to the lien of the mortgage of said railroad company to the A. B. Trust Company of , trustee, dated . • R. X., Counsel for S. M., Receiver. No. 551. Order Granting Leave to Amend Exceptions to Master's Report. \_Caption.'\ It is further ordered that leave be granted to complainant to amend its exceptions to the report of the Master heretofore filed in said cause for failure to report upon the facts as to the former adjudications mentioned in the bill of complaint and his conclusions of law thereon. 674 SUITS IN EQUITY. No. 552. Final Decree on Master's Report. [Caption.] This cause came on for final hearing on the Master's report, the exceptions thereto and the evidence and proofs in the case, and the court being fully advised in the premises, doth order and decree that the exceptions of the plaintiff to the report of the Master be and the same are hereby overruled, and the exception of the respondent to the Master's conclusion of law from the facts relating to the increase of the valuation of the shares of complainant by the State Board of Equaliza- tion for banks is sustained, and on the report of said Master, and the evidence in the case. It is ordered, adjudged and decreed that the said bill of complainant herein be and the same is hereby dismissed with costs to the defendant to be taxed. No. 653. Final Decree on Master's Report. \^Capizon.] This cause having come on to be heard upon the report of C. G., Esq., one of the masters of this court, to whom it was referred to ascertain and report [as in the decretal order], which report bears the date of the day of , 1894, [and also upon exceptions taken to the said report on the part of said plaintiff, and also on the part of said defendant, and upon the equity reserved], and the said cause having been argued by counsel, and due deliberation had thereon — It is ordered, adjudged, and decreed, and this court, byvir- tue of the power and authority therein vested, does order, adjudge, and decree that [the decision of the court]. And it is further ordered, adjudged, and decreed, and this court, by virtue of the power and authority therein vested, PROCEEDINGS BEFORE A MASTER.' 675 does order, adjudge, and decree that the said defendant pay to the said plaintiff the sum of dollars. And it is further ordered, adjudged, and decreed that the said defendant pay to the said plaintiff his costs in this suit to be taxed, and that the said plaintiff have execution for such costs, and for the sum above decreed to be paid to said plaintiff as aforesaid. No. 554. Reference to a Master in Special Cases. For master's reports in particular cases see under titles " Patents " and " Proceedings relating to Receivers," etc. No. 555. Contempt Proceedings. See Nos. yi2 et seq. 676 RECEIVERS ORIGINAL PROCEEDINGS. RECEIVERS.* No. 5S6. Bill by Judgment Creditor Praying the Appointment of a Receiver (i). For form of bill by judgment creditor for the appointment of a receiver, see form of bill in equity No. 282. (i) It is' now well settled law that simple contract creditors cannot come into a court of equity to obtain the seizure of the property of their debtor and its application to the satisfaction of their claims. Judgment creditors only can maintain such suits for the appointment of a receiver. HoUins vs. Brierfield Coal & Iron Co., 150 U. S. 378. No. 557. Bill for the Foreclosure of a Railway and Appointment of Receiver. For form of Bill in Equity for the foreclosure of a railway, see form of bill. No. 287 ante. *What are commonly known as receivership suits are usually begun by a judgment creditor's bill against an insolvent person or corporation or by a bill to foreclose a mortgage against a railroad or manufacturing corporation. Receivers may be appointed in many other classes of suits. See Beach's Mod. Eq. Prac, chap. 22 ; Bates' Fed. Eq., Sees. 580 et seq.; Thompson on Corporations, title 17. SUITS IN EQUITY. ^"77 No. 558. Bill for an Account of Partnership Dealings and Dissolu- tion, and for a Receiver. For form of bill, see No. 285. No. 559. Affidavit of Insolvency in Support of Bill (i). State of , County of , ss. G. L., of lawful age, being duly sworn, on oath says, that he resides in the city of , state of , and is the Treas- urer of the C. D. Co., a New Jersey corporation, defendant in the foregoing bill of complaint; that he has heard the fore- going bill of complaint read, and is familiar with the facts therein stated. That all said facts with reference to the for- mation of said corporation, its purposes, the amount of its stock, and its business and property, are true to his own knowledge. That a debt of dollars due on call by said corporation to the National Bank of the city of ■was demanded on call, and became due and payable on the day of , 1893, and payment thereof was refused and default made therein, because of lack of sufficient funds of said corporation to pay the same. Further debts of said corporation matured on the day of , 1893, amount- ing to not less than dollars, and default was made in the payment thereof, because of lack of funds to pay the same. On the day of , 1893, further debts of said corporation matured, amounting to not less than dollars, and default was made in the payment thereof for lack of funds. Daily thereafter during the month of debts will mature. The total amount of which said indebtedness maturing from the day of to the day of , 1893, is more than dollars. The corporation is also indebted in 678 SUITS IN EQUITY. amounts which will mature from day to day during the months of , , and , in 1893, exceeding dollars. The corporation is without funds to meet the said indebt- edness, or any considerable part thereof, and has no assets which are readily convertible into money, and has no rea- sonable prospect of being able to meet its obligations after this date. The assets of said corporation consist of several [cordage] mills, owned or operated at least in the several cities mentioned in the bill of complaint, and all the [cord- age and twine] manufactured, and in manufacture, and in process of manufacture, the value of all which it is impos- sible at this time to estimate, or to even approximate. That the corporation also has certain assets, consisting of open accounts receivable and bills receivable, the greater part of which mature in , , and , 1893, and a very small part of which is available for the raising of money at this time. The securities of said company which are available for the raising of said money are already pledged and hypothecated for debts due by the corporation. The corporation can not pay its maturing obligations, and has no means of raising money to pay the same, and is in fact un- able to pay its debts, and is insolvent. G. L. Subscribed and sworn to before me this day of , 1893. J. N., [Seai:] [Official title.] (i) See Beach's Modem Eq. Prac, Sec. 729. No. 560. Order Taking Jurisdiction and Fixing Day for Hearing. [Caption.] Now, on this day of , comes the complainant, by its counsel, R. X., and, having filed its bill of complaint and exhibits, moves thereon, and upon the affidavits of [name RECEIVERS ORIGINAL PROCEEDINGS. 6/9 affiants'], for the appointment of a receiver of the railway and property of the C. & D. Railway Company; and thereupon the defendant, the C. & D. Railway Company, appearing by its counsel, L. B., and asking a postponement of the applica- tion: It is ordered that the complainant's application be and is sustained, and the further hearing stand over to the day of , A. D. , at — r— , lo a. m., with the right to all parties to be then heard on the merits of said application, without any prejudice by reason of this order, and that in the meantime the defendants be restrained from making any change in the present status of said C. & D. Railway other than may be necessary in the proper operation of said railway as heretofore. No. 561. Notice of Application for the Appointment of a Receiver (i). To R. X., Attorney for — ■ — : Notice is hereby given, pursuant to the terms of an order in this cause, dated the day of , that the further hearing of the application for the appointment of a receiver herein will be had before the Hon. J. B., the Circuit Judge of this circuit, at , on , the day of , at lo o'clock in the forenoon of that day, or as soon thereafter as counsel can be heard. Dated . Yours, etc., X. & X., Solicitors for Complainant. (l) This notice should be given each party interested or his counsel. 68o SUITS IN EQUITY. No. 562. Motion for the Appointment of Receiver to take Charge of Mortgaged Property, Collect Rents, etc. The Circuit Court of the United States, District of . A. B., Complainant, vs. C. D., Defendant. Now comes A. B., complainant in this case, and moves the court for the appointment of a receiver herein, to take charge of the mortgaged property described in the bill, to collect the rents thereof, and further to act in the premises as this court, after hearing, may direct, and with such further orders and instructions as this court may deem proper to give. R. X., . Attorney for Complainant. No. 563. Order Concerning Application for Receiver and Extending Time to Answer, etc. The Circuit Court of the United States for the District of . The A. B. Trust Company, Complainant, vs. The C. & D. Railway Company, and the E. & F. Railway Company, Defend- ants. And now, on this day of , A. D. , in pur- suance of the stipulation of the parties hereto, it is now by the court here ordered that the further hearing of the application for the appointment of a receiver in this case shall stand over until such date as may be fixed in a written notice to be served by the complainants, at least twenty days before the date so fixed, or such shorter time as may be allowed as notice. In RECEIVERS ORIGINAL PROCEEDINGS. 68i event of an application by any other person for the appoint- ment of a receiver of said property, and until the further order of the court, and notwithstanding the filing of the bill of com- plaint or any order heretofore made, or this order, the E. & F. Railway Company may continue to operate, under the exist- ing lease thereof, the railroad and property of the C. & D. Railway Company, and shall have and enjoy all rights and privileges under said lease as fully and completely as if the bill of complaint herein had not been filed, or the order of June 9 or this order been made. And it is further ordered that until further order of the court the management, operation and control by the Northern Railroad Company of its railroad and property, and the dis- position and control of its revenues by the said Northern Rail- road Company, shall so be and remain the same as if said bill of complaint had not been filed, or any order heretofore or this order been made. And it is further ordered that the time within which de- fendants may file answers in this case be and the same is hereby extended for the period of sixty days from the date of this order. No. 564. Entry of Appearance and Answer. \^Caption.\ And now comes the C. D. Co., defendant in the above-enti- tled cause, and waives the issuing and service of subpoena, and enters its appearance herein, and admits that the several statements and charges of said bill of complaint are true. Y. & Y., Attorneys for the C. D. Co. 682 SUITS IN EQUITY. ' No. 565. Order Appointing Receiver for a Railway (i). \Caption.'\ Upon reading and considering the verified bill in this cause, together with the evidence adduced, on motion of counsel for the plaintifiF, the defendant having been duly no- tified to appear by its counsel, it is ordered by the court that S. M. be and is hereby appointed receiver of this court of all and singular the property, assets, rights, and franchises of the C. & D. Railway Company described in the bill of complaint herein, wherever situated, including all the railroad tracks, terminal facilities, real estate, warehouses, ofiices, stations, and all other buildings and property of every kind owned, held, possessed, or controlled by said company, together with all other property in connection therewith, and all moneys, choses in action, credits, bonds, stocks, leasehold interests, operating contracts, and other assets of every kind, and all other property, real, personal, and mixed, held or possessed by it, to have and to hold the same as the officer of and under the orders and directions of the court. The said receiver is hereby authorized and directed to take immediate possession of all and singular the property above described, wherever situated or found, and to continue the operation of the railroad of said company, and to conduct systematically, in the same manner as at present, the business and occupation of carrying passengers and freight, and the discharge of all the duties obligatory upon said company. And said C. & D. Railway Company, and each and every of its officers, directors, agents, and employes are hereby re- quired and commanded forthwith to turn ovef and deliver to such receiver or his duly constituted representative any and all books of accounts, vouchers, papers,, deeds, leases, con- tracts, bills, notes, accounts, money, or other property in his or their hands or under his or their control, and they are hereby commanded and required to obey and conform to RECEIVERS ORIGINAL PROCEEDINGS. 683 sucli orders as may be given them from time to time by the said receiver or his duly constituted representative in con- ducting the said railway and business, and in discharging his duty as such receiver ; and they and each of them are hereby enjoined from interfering in any way whatever with the pos- session or management of any part of the business or prop- erty over which said receiver is so appointed, or from in any way preventing or seeking to prevent the discharge of his duties as such receiver. Said receiver is hereby fully author- ized to continue the bjisiness and operate the railway of said company, and manage all its property at his discretion in such manner as will, in his judgment, produce the most sat- isfactory results consistent with the discharge of the public duties imposed on said company, and to collect and receive all income therefrom and all debts due said company of every kind, and for such purpose he is hereby invested with full power at his discretion to employ and discharge and fix the compensation of all such officers, counsel, managers, agents, and employees as may be required for the proper discharge of the duties of his trust. And said receiver is directed to deposit the moneys coming into his hands in some bank or banks in the city of , , and to report his selection to the court. Said receiver is hereby fully authorized and empowered to institute and prosecute all such suits as may be necessary, in his judgment, to the proper protection of the propeij'ty and trust hereby vested in him, and likewise defend all actions instituted against him as receiver, and also to appear in and conduct the prosecution or defense of any and all suits or proceedings now pending in any court against said company, the prosecution or defense of which will, in the judgment of said receiver, be necessary and proper for the protection of the property and rights placed in his charge, and for the in- terest of the creditors and stockholders of said company (2). Said receiver is hereby required to give bond in the sum of $100,000.00, with security satisfactory to this court, for the 684 SUITS IN EQUITY. faithful discharge of his duties, and is also required to make and file full reports in this court quarterly. And the court reserves the right by orders hereinafter to be made, to direct and control the payment of all supplies, materials, and other claims, and to in all respects regulate and control the conduct of said receiver. J. S., Circuit Judge. And thereupon came in open court said S. M., and accepted such appointment, and was thereupon duly sworn according to law, and tendered his bond as required by said order, with W. P. and C. J. as sureties therein, which bond is hereby approved and accepted (3). (i) This order may be and is frequently made by a judge ir chambers, Walters vs. Trust Co., 50 Fed. Rep. 316; Wood vs. Oregon Devel. Co., SS Fed. Rep. goi, after suit pending but not before bill is filed ; Greene vs. Star Cash and Package Car Co., 99 Fed. Rep. 656 ; In re Brant, 96 Fed. Rep. 257- As to what the order should contain, see Bates' Fed. Eq., Sec. 594. (2) As to the rights of a receiver to sue, see Beach's Modern Eq. Prac, Sees. 742 and 743. (3) See note at the end of No. 293. No. 566. Order Appointing a Receiver for a Railroad (Another Form). The Circuit Court of the United States for the District of . The A. B. Trust Company, Trustee, ., Complainant, vs. The C. & D. Railway Company, and the E. & F. Railway Company, Defendants. In this cause an order was duly made on the day of , that the complainant's application for a receiver be and In Equity. RECEIVERS ORIGINAL PROCEEDINGS. 685 is sustained, and that the further hearing of such application stand over until the day of , and that the rights of all parties be then heard on the merits of said application, as will more fully appear by reference to said order; and on the day of , under stipulations of the parties, the court ordered that the further hearing of the application for the ap- pointment of a receiver in said cause shall stand over until such d9.te as should be fixed by w^ritten notice as particularly specified in such order ; and pursuant thereto notice has been duly given, fixing this the day of , for such hearing. Now on this day of , comes the A. B. Trust Company, trustee, complainant, by X. & X., its solicitors ; and also come the defendants, the C. & D. Railway Company, by Y. & Y., its counsel ; the E. & F. Railway Company, by B. P., its solicitor. And thereupon came on for hearing upon the bill of com- plaint, answer, exhibits and affidavits the said application of the said A. B. Trust Company for the appointment of a re- ceiver, which application is not resisted by the E. & F. Railway Company, but is resisted by the C. & D. Railway Company; and the same having been argued by counsel and considered by the court, it is now hereby ordered, adjudged and decreed that S. M. and H. C. be and they are hereby appointed re- ceivers of the property of the C. & D. Railway Company cov- ered by the mortgages made by the said company which are sought to be foreclosed in the bill of the A. B. Trust Com- pany, complainant, with the following powers and instruc- tions, to wit: • First. Said receivers are hereby directed to take, on the day of , possession of all of the said mortgaged property, and to operate and cause to be operated the said rail- roads mortgaged as aforesaid, as herein provided, and to pre- serve and protect all of the said mortgaged property, acting in all things under the order of this court, or of such other 686 SUITS IN EQUITY. courts as may entertain jurisdiction of parts of the said mort- gaged property as ancillary to the jurisdiction of this court. Second. The said receivers also, in like manner, shall, until otherwise ordered, pay all rentals accrued, or which may here- after accrue, upon all leased lines of the C. & D. Railway, and for the use of all terminals or track facilities, and all such rentals or instalments as may fall due from the said company for the use of any portion of the road or roads or terminal facilities of any other company or companies, and also all sums of money due or to become due for rolling stock or for steel, iron, ties, or other materials, for the maintenance of way or construction, sold or contracted to be sold to or for the benefit of the C. & D. Railway Company. And it appearing to the court that the C. & D. Railway Company has com- menced or promoted the construction of a branch railroad from , in the state of , to or towards , in said state, and has expended a very considerable sum of money thereon, and that the company constructing said road is under a statutory obligation to complete and equip at least ten miles of the same prior to the day of ; and upon such completion the said C. & D. Railway Company will be entitled to certain stocks and bonds, and upon failure so to complete will forfeit all of the corporate franchises and rights belong- ing to said branch, railroad ; wherefore, the receivers are au- thorized, if in their judgment it shall be to the best interests of all parties concerned, to build and equip the said ten miles of said road, and in all respects to comply with the statutory requirements of the state of in relation thereto. Third. And the said receivers are also authorized to defend any actions pending or which may be brought seeking to es- tablish claims, liens or demands against the said company or its property, and to prosecute or continue any action already brought against any corporation or party for the recovery of any money or property due to the said C. & D. Railway Com- pany. RECEIVERS ORIGINAL PROCEEDINGS. 687 Fourth. Said receivers shall also pay, out of any income or revenues which may come into their hands, all just claims and accounts for labor, supplies, professional services, salaries of ofScers and employees remaining unpaid, and that have been earned or have matured vi^ithin three months prior to the said day of . Fifth. The matter of the payment of balances due or to be- come due to other railroads or transportation companies, growing out of the exchange of traffic, is reserved for further orders. Sixth. The said receivers are further ordered and directed to pay all taxes on the said mortgaged property as the same shall mature, and also all the current expenses in the operation and maintenance of the said road, and to collect all the rev- enues thereof. Seventh. The said receivers are further ordered and di- rected to keep, or cause to be kept, such accounts as may be necessary to show the sources from which all the income and revenues shall be derived, with reference to the interest of all the parties to each of the mortgages mentioned in the com- plainant's bill. Eighth. The receivers shall report to this court from time to time, at least once in three months, their doings under this order, and they may apply to this court for instructions when- ever necessary. Ninth. The said receivers, before entering on their duties, shall each take and subscribe an oath to perform them faith- fully, and with one or more sureties, approved by this court or any judge thereof, shall execute an undertaking to the clerk of said court, for the benefit of whom it may concern, in the penal sum of two hundred thousand ($200,000) dollars, conditioned to the effect that he will faithfully discharge the duties of receiver herein, and obey the court. Tenth. It is further ordered that all parties having in their possession any of the said mortgaged property shall, upon 688 SUITS IN EQUITY. written demand of said receivers, yield up and deliver said property to them, and the complainant and defendants are and each of them is authorized to apply to any other Circuit Court of the United States of competent jurisdiction for such other order or orders in aid of the primary jurisdiction vested in this court, in said cause, as may have ancillary jurisdiction herein. Eleventh. And it appearing to the court that certain bonds and stocks claimed to be the property of the said defendant, the C. & D. Railway Company, are now in the possession of the A. B. Trust Company, the complainant herein, it is or- dered that said A. B. Trust Company retain the possession of said property until the further order of this court, unless the surrender thereof shall be duly ordered by some court of com- petent jurisdiction. To all of which orders and appointments the C. & D. Rail- way Company, defendant, objects and excepts. (i) See note to No. 565. This order was entered in the case Mercantile Trust Co. vs. Missouri, Kansas & Texas Ry. Co., pending in the Circuit Court of the United States for the District of Kansas. No. 567. Order Appointing Receiver with Power to Collect Rents. ^Caption.] This cause came on this, the day of , for orders, upon the application of complainant for the appointment of a receiver of the property involved herein, whereupon it was ordered and decreed by the court that M. L. be, and is, hereby appointed receiver of said property, being premises lot No. 5, Stephenson subdivision of county lot 512, north side of Ala- bama street, 45 J^ by 242 feet, and occupied by S. P. and J. P. He will take possession of said property and rent it out from month to month. The clerk of the court will issue to him a RECEIVERS ORIGINAL PROCEEDINGS. 689 copy of this order, as evidence of his authority, and if posses- sion is refused him under this order, the clerk will issue a writ of possession to the marshal, commanding him to put said receiver in full and peaceable possession of said premises. Said M. L. will execute a receiver's bond in the penalty of $ , with one surety, conditioned to account for any rents coming into his hands as such receiver, and to discharge the duties of such faithfully. It is further ordered that said re- ceiver will not take possession of the premises aforesaid until the expiration of ten days from this date, and in the meantime, if the said defendants, S. P. and J. P. shall pay all taxes and costs and charges for the collection thereof, against said prem- ises, and remove all adverse claims imperiling the title of said property as a security to the Southern Building & Loan Asso- ciation, this order appointing M. L. receiver will be vacated upon the application of said S. P. and J. P. No. 568. Order Extending the Receivership. The Circuit Court of the United States for the District of . The A. B. Trust Company, Trustee, Complainant, vs. The C. & D. Railway Company, and the E. & F. Railway Company, Defendants. An order was heretofore made in this suit, bearing date the day of , A. D. , and entered on the day of , A. D. , in which and whereby it was or- dered, adjudged and decreed that S. M. and H. C. be ap- pointed receivers of the property of the C. & D. Railway Company, covered by mortgages made by the said company, which are sought to be foreclosed in the bill of complainant 690 SUITS IN EQUITY. herein, with the powers and instructions stated in the said order. ^ Now, on this day of , A. D, , there comes be- fore me the C. & D; Railway Company, one of the above named defendants, by R. T., its counsel, and the said the E. & F. Railway Company, the other defendant, by R. Y., its counsel, who appears in opposition to the present application, and claims that the court has no jurisdiction to make the order as prayed for, or any order in the premises ; and the said S. M. and H. C, receivers, by H. S., their counsel. And it also appearing that the A. B. Trust Company, trus- tee and complainant, has received due notice of this applica- tion, and has signified that it does not oppose the granting of the relief prayed for by the C. & D. Railway Company. And thereupon came on for hearing the said application of the defendant, the C. & D. Railway Company, and on its said petition, and on the afifidavit of W. B. on the bill of com- plaint, and all the proceedings in this cause, and it further appearing to my satisfaction that the relief prayed for is neces- sary for a full and complete protection of the property covered by the said mortgage, and referred to and described in the bill of complaint, and that by reason of the allegations contained in the petition of the defendant, the C. & D. Railway Com- pany, it is entitled to the relief therein prayed for : It is now hereby ordered, adjudged and decreed that the receivership of the said S. M. and H. C. be, and the same is, hereby extended to cover all interest and estate of the C. & D. Railway Company in the property and assets described in said petition, to wit: [Naming the property as, Ninety-seven thousand two hundred and eighty-four shares of the capital stock of the International & Great Northern Railroad Com- pany ; one thousand shares of the capital stock of the Galves- ton, Houston & Henderson Railroad Company ; nine thousand nine hundred and sixty-eight shares of the capital stock of the Boonville Bridge Company; one thousand and sixty-five RECEIVERS ORIGINAL PROCEEDINGS. 69I one-thousand-dollar bonds of the General Consolidated Mort- gage, and four hundred one-thousand bonds of the Galveston, Houston & Henderson Railway Company of 1882] : provided, however, that this order shall not affect or impair any rights, legal or equitable, in respect to said property, of either the par- ties to this suit, or of any other person whomsoever, existing at the time of the entry of this order, and shall not affect the rights, legal or equitable, of any other person or corporation having in custody any of said property, or any part thereof heretofore existing, under any claim of right as against the C. & D. Railway Company or its receivers; and the parties now in possession of said property shall hold the same subject to any legal or equitable rights of the parties hereto, for the use and benefit of said receivers, subject to the further order of this court, or of any court having ancillary jurisdiction herein. Nothing herein contained shall be construed as an admis- sion by the said the C. & D. Railway Company, or the said receivers, of the validity of any of the said liens, or claims, or of the amount claimed to be due thereon. Nothing herein contained is intended to affect in any man- ner the franchises of the said corporation, or its right to con- tinue and maintain its organization. The said receivers are further ordered and directed to keep such accounts as may be necessary to show any property or assets, the title to which may be vested in them under this order, to the end that the just rights of all parties having claims, rights, liens or demands against the said property or assets, or against the said company, may hereafter be adjudi- cated and determined by this court, or any other court having ancillary jurisdiction thereof, and the said property and assets applied in conformity with such adjudications. The said receivers, before entering upon their duties, shall take and subscribe an oath to perform them faithfully, and with one or more sureties approved by this court, or any judge 692 SUITS IN EQUITY. thereof, shall execute an undertaking to the clerk of said court for the benefit of whom it may concern in the penal sum of two hundred thousand dollars, conditioned to the effect that they will faithfully discharge the duties of receivers under this order and under the orders of this court. The complainant and the defendant, the C. & D. Railway Company, are and each of them is authorized to apply to any other United States circuit of competent jurisdiction as may have ancillary jurisdiction herein, for such order or orders in aid of the primary jurisdiction vested in this court as may be necessary. To the above order the E. & F. Railway Company -duly excepts. No. 569. Order to File Amendment and Extending Receivership. [^Caption^ This cause came on to be heard this day of , upon the application of the plaintiff for leave to file its amendment to its bill of complaint filed herein heretofore in this cause : Whereupon, the court being fully advised thereof, said ap- plication is hereby granted, and the clerk of the court is di- rected to file the same as of the date of this order. And upon application of the plaintiff it is further Ordered and decreed that the receivership of S. M. and H. C, appointed under a decree heretofore made in this cause, be and the same is hereby extended to and over all the rail- way and property of the defendants \name the railways un- der the control of the defendants over which the receivership is extendedl; and that the said S. M. and H. C. be and they are hereby appointed receivers of all said railways and the properties thereof, with all the powers and authorities men- RECEIVERS ORIGINAL PROCEEDINGS. 693 tioned in and subject to all the terms and conditions of said decree appointing them receivers in this suit. And the said receivers are hereby authorized to defend any action pending, or which may be brought, seeking to estab- lish claims, liens, or demands against the C. D. Company and the above named railway cojnpanies, or either of them, or the property of either of them, and to prosecute any action al- ready brought against any corporation or person for the re- covery of any moneys or property due said railway company or either of them. A. P., Circuit Judge. No. 293. Order Appointing Receiver for a Manufacturing Corporation. {Caption.^ Upon reading and filing the verified bill of complaint in this cause, together with the verified affidavits of J. W. and G. L. and the exhibits in support thereof, and on motion of the counsel for plaintiff, and counsel for defendant appearing and consenting thereto, it is ordered by the court that E. Y., of , in the state of , and C. L,., of , in the state of , be and they are hereby appointed receivers of this court of all and singular the property of the N. C. Co. of every description, and all money, claims in actions, credits, bonds, stocks, leasehold interests or operating contracts, and other assets of every kind, and all other property, real, per- sonal, or mixed, held or possessed by said company, to have and to hold the same as officers of and under the orders and directions of this court. The said receivers are hereby authorized and directed to take immediate possession of all and singular the property above described, and to continue the business of said com- pany. 694 SUITS IN EQUITY. Each and every of the officers, directors, agents, and em- ployees of said N. C. Company are hereby required and com- manded forthwith, upon demand of the said receivers, to turn over and deliver to such receivers any books, papers, moneys, or deeds, or property, or vouchers for the property, under their control. The said N. C. Company and its officers are hereby directed immediately to execute and deliver to the said receivers deeds of all real estate now owned or possessed by said company, and transfers and assignments of all their property. Said receivers are hereby fully authorized to institute and prosecute all such suits as they may deem necessary, and to defend all such actions instituted against them as such re- ceivers, and also to appear in and conduct the prosecution or defense of any suits against the said N. C. Company. The said receivers are hereby authorized and directed out of the moneys coming into their hands to pay and discharge all amounts due to employees upon the current pay-roll. Each of the said receivers is required to file with the clerk of the court within ten days from date a proper bond, the sureties to be approved by the clerk of this court, in the penal sum of dollars. All creditors of said N. C. Company are hereby enjoined from in any way intermeddling with the property hereby di- rected to be turned over to said receivers ; and all officers, directors, and agents of said N. C. Company are hereby en- joined from interfering with or disposing of said property of said N. C. Company in any way, except to transfer, convey, and turn over the same to said receivers. J. S., Circuit Judge. \If the receivers appear in open court at the time the order is made, an entry like that appearing at the end of No. 292 should be made. When the receivers appear and accept the appointment later, an entry should be made stating such /act.1 RECEIVERS ORIGINAL PROCEEDINGS. 695 No. 571. Oath of Receiver (i). [Caption.] I, the undersigned, S. M., having been appointed receiver of the C. & D. Railway Company, do solemnly swear that I will faithfully perform the duties of that office and obey all the orders of said court. So help me God. S. M. Subscribed and sworn to before me this day of . J. a, Circuit Judge, (i) As to necessity for oath, see Union Trust Co. vs. 111., Etc., Ry. Co., 117 U. S. 434. No. 572. Bond of Receivers. [Caption.] This undertaking, made and entered into the day of -, witnesseth: that we, S. M., as principal, and E. F. and G. H., as sureties, do promise and undertake, to and with the clerk of said court, for the benefit of whom it may concern in the penal sum of dollars, that the said S. M. will faithfully discharge the duties of receiver of the C. & D. Railway Qompany, and obey all orders of the court herein. Witness our hands and seals this of , 1894. S. M. [Seai:\ State of , E. F. [seal^ County of , ss. ,G. H. [Seal.] I, E. F., one of the sureties named in the within bond, do swear that I am pecuniarily worth the sum of dollars over and above all my debts and liabilities and legal exemp- tions. E. F. Sworn to before me this day of , 1894. [5^a/.] E. G., Notary Public. Approved this day of , 1894. J- S., Circuit Judge. (i) Receivers are required to give bond. See Union Trust Co. vs. 111., Etc., Ry. Co., 117 U. S. 434; Fos-iick vs. Schall, 99 U. S. 249. 696 SUITS IN EQUITY. No. 573. Order Overruling Petition to Rehear Application for Appoint- ment of a Receiver. [Caption.'] The petition of the C. & D. Company to the court to grant ' a new hearing of the application of complainant for the ap- pointment of a receiver, and to set aside the order heretofore made appointing a receiver in this suit, came on to be heard and was argued by counsel, on consideration whereof the court overrules said petition. No. 574. Order that Receivers Give Notice to Stockholders by Publication. \^Capizon.] And now, this day of , 1893,. come S. M. and H. C, receivers of the property of the C. D. Co., appointed and confirmed by an order of this court made in this cause on the day of , 1893, and present their petition, veri- fied the day of , 1893, upon consideration whereof it is by this court hereby Ordered that the creditors of the C. D. Co. bring in and present to said receivers, in writing, their several claims and demands, and make proof thereof upon oath to the satisfac- tion of the said receivers on or before the day of , 1893, and in default thereof that the said creditors be de- barred from participating in any dividend or distribution of the assets of said corporation which may be made by the receivers. And it is further ordered that the receivers give notice of the foregoing order by causing such notice to be published in the [name of paper] , a daily newspaper published in the city of , once a week for the space of four weeks, the first publication to be made within ten days from the date of this order. J. S., Dated . Circuit Judge. RECEIVERS — ORIGINAL PROCEEDINGS. 697 No. 575 Notice of Petition by Receivers. \^Caption.\ Notice to A. B. Trust Company and the C. & D. Railway Companj', or their Sohcitors of Record : You, and each of you, are hereby notified that the petition of S. M. and H. C, receivers of the C. & D. Railway, a copy of which is hereto attached and made a part hereof, will be presented in the above-entitled cause to the above-named court, or to one of the judges thereof in chambers, at the city of , on the day of , at 10 o'clock in the forenoon of that day, or so soon thereafter as the said court or judge may hear the same, and^that said' receivers will ask the order of the court thereon at that time. Z. & Z., Solicitors for S. M. and H. C, Receivers of the C. & D. Ry. No. 576. Answer to Petition (i). The Circuit Court of the United States for the District of . The A. B. Trust Company vs. The C. & D. Railway Company et al. The answer of the Union Trust Company of to the petition of the C. & D. Railway Company, as to the receivers in the above-entitled action appointed making certain pay- ments on the securities of the Northern Railroad Company, respectfully shows to this court: That this respondent has lately exhibited and filed in this court its certain bill of complaint against the said C. & D. Railway Company and the E. & F. Railway Company, and that, as respondent is informed and believes, the defendants have appeared' therein, and said suit is now pending in this court. 698 SUITS IN EQUITY. This respondent says that all and singular the allegations in said bill of complaint as therein made are true, and that re- spondent refers to the same on the files of this court, and makes the same and the allegations thereof a part of this an- swer, the same as if fully set out and incorporated herein. Respondent further says that it is informed and believes, that at some time heretofore, but long after the execution and delivery of the bonds and the mortgages in respondent's said bill of complaint mentioned, as made and delivered to this respondent and' its cestui que trusts, said petitioner did obtain the stock of the Northern Railroad Company, by exchanging therefor a large amount of respondent's own stock, issued for that purpose. Whether such exchange was valid, or within the corporate powers of petitioner, respondent is not informed ; but submits that it was invalid and beyond the powers of petitioner. Respondent denies that said stock of said Northern Rail- road Company was acquired at an enormous or any outlay. It was simply an exchange of stock. Respondent admits that the revenues of the Northern Rail- road Company are insufficient to meet its accrued and present- ly accruing obligations, and that it is now in the hands of receivers, appointed by a court of ; and that the interest due on the second mortgage is in default, and has not been and will not be paid. Respondent does not admit that the reason thereof is that alleged in the petition. The reason alleged is mere opinion and speculation; and respondent knows of no reason to sup- pose that the management in the future will be improved. Quite likely a suit to foreclose the Northern second mort- gage will be commenced, but respondent denies that it can embarrass petitioner, as petitioner has not the possession or management of its road. Respondent has no- knowledge as to whether there is any probability that in the near future RECEIVERS ORIGINAL PROCEEDINGS. 699 the Northern Railroad Company can or will earn its present fixed charges, whether operated by the receivers or others. If it ever could do it, it would be vastly more likely to do it if operated by the trustee of the mortgages taking posses- sion thereof, for it would then have the attention and interest of owners. Respondent has no knowledge or information as to the telegrams in the petition referred to ; respondent, how- ever, has no doubt but that the receivers would like the re- ceivers of the petitioner's road, or any one else, to pay the debts of the Northei-n Railroad Company. Respondent further shows that the revenues of petitioner's road in the hands of the receiver are insufficient to pay. its own current indebtedness, which is in default and rapidly ac- cumulating. That the part of the road covered by the mortgage to re- spondent is by far the more valuable. Respondent is in- formed and believes that by the report of the receivers re- cently filed, and which respondent makes a part of this an- swer, more than four-fifths of the income of the road is from the part covered by the mortgages to this respondent. That by the terms of such mortgages, copies of which are annexed to said bill of complaint of this respondent, such income belongs to and is the property of this respondent, and this respondent respectfully submits that this court, and any court, has no power to take such property from respondent without its consent. Wherefore, respondent asks that the prayer of said petition be denied. Union Trust Company, [Seal.'] By E. K., President. Y. & Y., Respondents' Solicitors. State of , County of . SB. 700 SUITS IN EQUITY. . . • • , E. K., being duly sworn, says, that he is president of Union Trust Company of , the respondent named in the forego- ing answer ; that said answer is true to the knowledge of this deponent, except as to the matters therein stated to be al- leged upon information and belief, and that as to those mat- ters he believes it to be true. E. K. Sworn to before me, this day of . ISeal.^ J. v., Notary Public, County. (i) Taken from the record in Mercantile Trust Co. vs. Missouri, Kansas & Texas Ry. Co., pending in the Circuit Court of the United States for the District of Kansas. No. 577. Notice of Petition by Receiver. The Circuit Court of the United States for the District of . The A. B. Trust Company, Complainant, vs. The C. & D. Railway Company, Defendant. In Equity. Notice to the A. B. Trust Company and the C. & D. Railway Company, or their Solicitors of Record : You, and each of you, are hereby notified that the petition of G. A. and H. C, receivers of the C. & D. Railway, a copy of which is hereto attached and made a part hereof, will be pre- sented in the above-entitled case to the above-named court, or to one of the judges thereof in chambers, at , on the day of , at ID o'clock in the forenoon of that day, or so soon thereafter as the said court or judge may hear the same, and that said receivers will ask the order of the court thereon at that time. X. & X., Solicitors for G. A. and H. C, Receivers of the C. & D. Railway. RECEIVERS ORIGINAL PROCEEDINGS. JOl No. 578. Petition of Defendant for an Order Authorizing Receivers to Deliver to it the Possession of Railway Property in their Hands. [Caption.] The petition of the C. & D. Railway Company, defendant lierein, respectfully shows to this court : First. That this is a cause ancillary to the main suit ■ between the same parties, in the circuit court of the United ■States for the district of . Second. That in the said main suit the C. & D. Railway Company has heretofore presented its petition praying for -an order of the court requiring the receivers of the C. & D. . Railway to turn over and deliver possession of the said rail- way and property to the said C. & D. Railway Company; and that prior to the submission of the petition the receivers filed -a report, and that upon the said petition and report the court ■did, upon the day of , enter an order conform- ably to the prayer of the said petition, and that copies of the said petition, and of the said report, and order of court are hereto annexed and marked respectively Exhibits A, B, and C, and made a part hereof. Wherefore your petitioner prays that the said order of the court may be spread upon the records in this court, and may be by this court confirmed and approved, and made the order of this court in this ancillary cause so far as the same may be necessaryin order to protect all the rights of all the parties in interest as against the property within the jurisdiction of this court. C. & D. Railway Co., Attest: By J. W., 3d Vice-President.. [Seal.] H. B., Secretary. R. X., R. L., Solicitors for C..& D. Ry. Co. . \Aitach exhibits "^," "^ " and "C"] 7P2 SUITS IN EQUITY. No. 579. Petition for an Order upon a Defendant to Deliver to the Receivers the Deed Records, Plats, and Other Muni- ments of Title (i). \Caption^ The receivers, S. M. and H. C, respectfully show : First. The title papers to the real property in their pos- session consist of deeds of conveyances for right of way, depot grounds, and other parcels and tracts of land used by the railway company in the operation and maintenance of said railway, and lands purchased or donated to said railway or its grantors as authorized by its charter. Second. That said C. & D. Railway Company, and the otjier corporations whose property is now in the possession of these receivers, and their grantors during the time of the construction of said railways, and from time to time as their requirements rendered necessary, condemned by proceedings in court in the diflFerent counties along the lines of said rail- ways, tracts of land for right of way, depot grounds, and for other necessary purposes, and for their convenience, had pre- pared and on file in their offices copies of all such condemna- tion proceedings. Third. That said C. & D. Railway Company, also for the convenience and use of its officers and employees, that they might readily ascertain the exact boundaries of the different tracts and parcels of land, so conveyed to it and its grantors, or the other lines of railway in its possession and operated by it, or condemned as aforesaid, caused full and accurate surveys of the same to be made, and caused plat books and surveys made thereof, and caused indexes to be prepared thereof. Fourth. That said papers, records, plats, etc., show in convenient shape all the property along the lines of said rail- way now in the possession of these receivers, and the title thereof, and the. rights of all of said railways in each piece of RECEIVERS ORIGINAL PROCEEDINGS. 703 said property, and how acquired, and from whom and under what contracts or conditions, if any. Fifth. That said papers, plats, etc., are of great necessity in the operation of said railway, in that they constitute the muniments of title to all of said property, and show the bound- ary and extent thereof from actual surveys, and enable your receivers to readily ascertain what real estate is covered by the orders of this court, of what they are entitled to take pos- session, and of what they are required to defend the posses- sion against adverse claimants or intruders, and of what they may rightfully occupy and use in the operation and mainte- nance of said railway, and by which they may ascertain any conditions upon which any tract of land is held, and deter- mine how, or in what respect, they may be required to com- ply with demands on them for performance of such conditions. Sixth. That these receivers require said muniments of title and surveys in many respects as fully and as necessarily as the C. & D. Railway Company did at the time they pro- cured the same. Seventh. That all of said plats, surveys and books and indexes are in the possession "of the defendant, the Missouri Pacific Railway Company, and they have neglected and refused to deliver the same to these receivers, though requested to do so. Wherefore, these receivers pray for an order upon said C. & D. Railway Company, defendant herein, to deliver to them all of said deeds, papers, plats, surveys, and books and indexes. Z. & Z., Solicitors for the Receivers. (i) The order asked for in this petition is usually included in the order appointing receiver, and this petition is only needed when such is omitted from the order appointing the receiver. 7P4 SUITS IN EQUITY. No. 580. Order Requiring Defendant to Turn Over to Receivers Books, Plats, and Deeds (i). At this day the petition of the feceivers for an order di- recting the defendant, the C. &D. Railway Company, to deliver to them certain deeds, records, plats, surveys, and other mun- iments of title to the real property in their possession under the order of this court having been presented to this court, and the court having duly considered, the same, it is ordeifed that the said C. & D. Railway Company deliver to said receivers all deeds of conveyance, records, plats, surveys, and books, and all other papers and muniments of title in their posses- sion or under their control pertaining to or affecting the title or right to the possession of the real estate in the possession of the receivers under the orders of the court, or show cause on the day of , at lo a. m., before me at the United States court room in the city of . J. S., Dated . Circuit Judge. The foregoing order made a"bsolute, and the receivers and C. & D. Railway Company shall make schedule, and receivers shall receipt for same. J. S., Dated . Circuit Judge. (i) See petition No. S79 and note to same. No. 581. Petition by Receiver for Authority to Settle Traffic Balance. [^Capit'on.] Petition by the receivers for authority to adjust, settle, and pay traffic balances between the C. & D. and other rail- roads. RECEIVERS ORIGINAL PROCEEDINGS. 70$ S. M. and H. C, receivers of the C. & D. Railway, respect- fully show : I. By the decree made in this case on the day of , and filed herein on the day of , being the de- cree appointing your petitioners receivers, among others the following order was made : "Fifth. The matter of the payment of balances due or to become due to other railroads or transportation companies growing out of the exchange of traffic is reserved for further orders." II. Since your receivers have taken possession of the C. & D. Railway,' there have arisen traffic balances between the C.&D. Railway, operated by your receivers, and other railways and transportation companies. These traffic balances consist generally of, — Fzrsi. Freight balances, which are amounts found to be due as between freight delivered to connecting lines by the C. & D. Railway, and received from connecting lines by said railway. Second. Ticket accounts. These result from the sale of coupon tickets by the C. & D. Railway over foreign lines, and the sale by foreign lines of such tickets over the C. & D. Railway. Third. Mileage accounts. These accounts comprise the mileage of the cars of other railway companies over the line of the C. & D. Railway, and the mileage of its cars over other railways. These traffic balances are sometimes in favor of one road and sometimes in favor of the other. It is vitally necessary in the transaction of railway business that these traffic bal- ances should be promptly paid by the respective railways at stated' times. III. There are traffic balances which will soon have to be discharged arising out of the operation of the railway in charge of your receivers, which will have to be settled, ad- justed, collected, or paid within a short time, and your re- 706 SUITS IN EQUITY. ceivers should have full authority to adjust, settle, collect, or pay them according to the prevailing usage existing among rail- way companies, so that there may be no interruption of the relations between the railway in charge of your receivers and other railways of the country. Wherefore your petitioners pray that an order be entered granting them authority to adjust, settle, collect, and pay all traffic balances arising out of the operation of the C. & D. Railway since , 1894, and which may hereafter arise from time to time. Z. & Z., Solicitors for the Receivers. State of- ) County of , ss. I, S. M., on oath, state that I am one of the receivers of the C. & D. Railway ; I have read the foregoing petition, and the facts therein stated are true, as I verily believe. S. M. Subscribed and sworn to before me this day of . [Seal.] E. G., Notary Public. No. 582. Order Authorizing Receiver to Settle Traffic Balances (i). At this day the petition of the receivers for authority to adjust, settle, collect, and pay all traffic balances arising in the operation of the C. & D. Railway since , 1894, when the receivers took possession of said railway, having been presented to the court, and the court having fully considered the same, and being fully advised in the premises, it is or- dered that the receivers be and are hereby authorized to adjust, settle, collect, and pay all traffic balances between the railway in their charge and other railroads or transportation companies arising out of the operation of the C & D. Rail- RECEIVERS ORIGINAL PROCEEDINGS. "JOJ way since , 1894, and whicli shall hereafter arise, ac- cording to the usual methods prevailing among the railroad and transportation companies of the country. \ J. S, Circuit Judge. (i) Current traffic balances are entitled to be paid in full out of current earnings as a preferential lien. No. 583. Order to Pay Rent. \Caption.\ This day came the receiver and represented to the court that the installment of rent due to the Northern Railway Company the day of , 18 — , under the lease referred to in the bill herein, has not been paid, and that the period of ninety days grace provided in said lease will expire the day of , 18 — , and that said receiver expects to have on hand sufficient funds to pay said rental on or before said last-named date, and asks authority of the court to make such payment, and thereupon it is ordered by the court that the receiver be and is hereby authorized to make such payment J. S., Circuit Judge. No. 584. Petition of Receiver for Permission to Defend Suits and Compromise Claims. \Caption^ Your petitioner, S. M., would respectfully show to your honors, that prior to his appointment as receiver herein, cer- tain suits had been brought against the C. & D. Railway Co., praying for damages to person or property ; that under the laws of the state of , and , such claims, when re- duced to judgment, are liens prior in right to the mortgage 708 SUITS IN EQUITY. issued by the defendant upon Its property, and that there are certain suits pending in the courts of the state of , and in the Circuit Court of the United States for the , district of . Your petitioner further shows that such suits or claims can generally be compromised and adjusted at sums which it is to the interest of the defendant and its creditors to prompt- ly accept, thereby saving much cost of litigation and other considerable amounts as compared with the usual expense and the results of such litigation ; and that other of such suits will have to be defended by your petitioner as receiver at the cost of the fund in the hand of your petitioner. Your petitioner, therefore prays that an order of court be made herein, permitting your petitioner as receiver of the defendant corporation to appear and defend the suits that have heretofore, or may hereafter, be brought in this state against the defendant corporation to recover damages for injuries to persons or property, and that your petitioner be given the right and discretion to compromise and adjust and settle any suits or claims against the defendant corporation for damages to persons or property, or any claims arising in the operation of the road committed to his charge, if, in the judgment of his counsel, it is proper to compromise, adjust, and settle such cases or claims, upon such terms as may be agreed upon between him and the litigants or claimants, and as in duty bound, he will ever pray, etc. S. M. [Verification, see No. 279.] No. 585. Order Appointing Special Master to Hear and Report Claims. [CapHon.] It is now ordered by the court that suits and proceedings against the receiver herein upon any cause of action or claim against the C. & D. Railway Co. accruing prior to the RECEIVERS — ORIGINAL PROCEEDINGS. 709 day of , 18 — , be brought only by intervening petition filed in this cause ; also that no process of attachment or execution, or other final process whatever be issued against said receiver for any act of his in the operation of the C. & D. Railway Co. otherwise than upon leave grauted upon in- tervening petition. It is further ordered that R. P. be, and he hereby is ap- pointed a commissioner of this court for the purpose of hear- ing and considering the above claims ; and also such other claims against the receiver herein, growing ottt of his ope-, ration of the road, as may be brought before him, ; and that the said commissioner have the power to hear and consider all such claims, and that the receiver be directed to appear before the said commissioner upon short notice served upon himself or upon an agent authorized by him to be served in his stead, to answer any claim filed with the said commis- sioner ; and that said commissioner have the power to take testimony and report the same with his findings to this court, and that unless such claimant or receiver shall within thirty days after the filing of the said report appeal from the same to this court, said report shall become final, and the receiver herein is hereby directed and authorized thereupon to pay out of any moneys coming into his hands such amount as the commissioner may award on said claim. It is further directed that said receiver do not in any case hereafter appear to answer any garnishment against any of his employees, but that all claims against said employees be presented to the said commissioner hereinbefore appointed ; and that upon his notice of such claim the said receiver shall forthwith notify said employee, and shall withhold from said employee from money otherwise due a sufficient amount to satisfy said claim, and that upon order of said commissioner the same shall be paid either to the said employee or to the said claimant, as said commissioner may direct and adjudge. And it is further hereby ordered that that certain order heretofore entered herein on the day of , i8 — , re- 7IO SUITS IN EQUITY. quiring, among other things, that suits of every kind against the receiver be brought only in the Circuit Court of the United States, be and the same is hereby rescinded and set aside from and after the entry of this order, and that the order shall stand in lieu thereof. J. S., Circuit Judge. No. 586. Order Appointing Master to Hear and Report Claims (An- other Form). [Caption.^ It having been represented to the court that claims are arising in against the receivers appointed and con- firmed in this case, growing out of the operations of the rail- way property in for stock killed, personal injuries, damages to freight, damages for short delivery, etc. ; and it appearing to the court that such claims will constantly arise during the pendency of the receivership in this case, and that such claims should be adjudicated, settled, and paid without requiring the parties interested to seek relief from the circuit court of the United States in -, having original jurisdiction : It is therefore ordered by the court that E. M., Esq., be and he is hereby appointed special master in chancery for this cause; and It is further ordered that all claims for damages of every kind that may arise against the receivers, growing out of their operation of the C. & D. Railway in , may be filed and presented to said commissioner, who shall examine and report thereon in due course. That the special master is directed to give reasonable public notice of this order, and is authorized to hold sessions pending examination of claims at such points as he may designate. He shall report his conclusions to the court from time to time, and such reports shall stand confirmed, unless ex- RECEIVERS ORIGINAL PROCEEDINGS. 711 cepted to within thirty days from the filing thereof, upon proper order entered according to the rules in the chancery order book. Dated . ^- P-' Circuit Judge. No. 587. Oath of Special Master. [Caption.] I, E. M., having been appointed special master in ■chancery in the above-entitled cause, do solemnly swear that I will faithfully and impartially discharge and perform all the duties incumbent upon me as such special master in chancery, according to the best of my skill and •ability, agreeably to the constitution and laws of the United States; so help me God. E. M. Subscribed and sworn to before me this day of , as witness my hand and official seal at . [Seal.'] C. H., United States Commissioner District of . No. 588. Proof of Claim before Master by One Receiver against An- other (i). State of , ■County of —■ , ss. Before me, a notary public in and for said county and state, personally appeared E. S., auditor for the receivers of the S. & R. Railway Company, who, being duly sworn, says that he is the authorized representative of the owner of the claims', •copies of which are hereto attached, and that said claims are correct, just and lawful, and the consideration therefor was balance due on ticket, miscellaneous (or car repairs), and mileage account; that no part of same has been paid; and 712 SUITS IN EQUITY. there was no counterclaim or set-offs against said balances, to the knowledge of affiant, and that there is justly due the said receivers of the S. & R. Railway Company thereon the sum of $ , bearing interest at six per cent, per annum, from the dates of the respective items of said accounts, to , with in- terest, amounts in all to $ , making the total of principal and interest due to said receiver, the sum of $ . E. S. Sworn to before me and subscribed in my presence, this day of , A. D. . J. M., {^Seal.'] Notary Public, County, . [Attach itemised statement of account.'] (i) A claim against a receiver may be presented by intervening peti- tion to the court or it may be proved before the master. When the latter course is taken it may be done by affidavit or frequently by examin- ing a witness orally before the master. See also Bates' Fed. Eq., Sec. 630. No. 589. Order to Pay Claims Accruing Prior to the Appointment of the Receiver. [Caption.] If is hereby ordered that the receiver herein be and is hereby authorized to pay out of any funds in his hands and applicable to the business of the railway being operated by him under the order of the court herein, and all claims accruing during the period of six months immediately prior to the appointment of the receiver herein, for supplies, ma- terials, wages, salaries, and expenses incurred by agents and employees, traffic balances with other common carriers, injury to or loss of property of shippers in transit, and for the use of the tracks, terminals, or other facilities of other railways used by the C. & D. Railway Co. in the ordinary transaction of its business. J. S., Circuit Judge. RECEIVERS ORIGINAL PROCEEDINGS. 713 No. 590. Petition for Order Limiting Time to Present Claims, etc. [Caption^ The petition of S. M. and H. C, receivers of the C. D. Co., respectfully shows to the court: That on the day of , 1893, by a certain order or decree of the chancellor of the state of New Jersey, upon a bill filed by J. W. against the C. D. Co., a corporation duly organized and existing under the laws of the said state of New Jersey, showing that said corporation was insolvent, and was not about to resume its business in a short time there- after with safety to the public and advantage to the stock- holders, your petitioners were duly appointed receivers of the said company, with power to receive or take into their pos- session all property of the company of whatever nature, and with other powers and duties in said order set forth, and that they duly qualified and gave the bond required by said court and entered into the possession of the property of said corporation as such receivers. That on the day of , 1893, upon a bill filed in this court in the above-entitled suit, setting forth the insol- vency of said corporation, and the appointment of your peti- tioners as receivers by the chancellor of New Jersey, as aforesaid, your petitioners were also appointed and confirmed receivers of this court, of all and singular the property of said company, with the powers and duties in said order pre- scribed ; and your petitioners duly qualified as such receivers, as in said order directed, and entered into the possession of all the property of said corporation, and have since been and now are engaged in the discharge of their duties as such re- ceivers, under the orders and decrees aforesaid. Your petitioners show that they have been appointed and con- firmed receiversoftheproperty of said C.D.Co.by the decrees of the circuit courts of the United States in and for the district of [naming all of the courts in which pro- 714 SUITS IN EQUITY. ceedings have been had'\, all of the foregoing appointments being ancillary to the said receivership in the state of New Jersey, the domicile of the said corporation. Your petitioners further show that on the day of , 1893, an order was made by the chancellor of New Jersey, directing the creditors of the said C. D. Co. to bring in and present to the said receivers, in writing, their several claims and demands, and to make proof thereof upon oath to the satisfaction of the said receivers within three months from the date of said order, and to cause notice of such order to be published and made as therein provided, such publica- tion to be commenced and notices mailed within ten days from the entry of said order, as by said order, a copy of which is hereunto annexed, marked "A," will more fully appear. That by a further order of the said chancellor, made the day of , 1893, the time within which the said cred- itors of said corporation should bring in and present to the said receivers their several claims and demands, and make proof thereof, as provided in said order of the day of , 1893, aforesaid, was extended to the day of , 1893, and the publication required by said order to be made was directed to be begun within ten days from the said day of , 1893, and it was directed that the mailing of notices to creditors required by said order might be done at any time before the expiration of said month of , as by said order of the day of , 1893, a copy of which is hereto annexed, marked " B," will more fully appear. Pub- lication of the notices to present claims has been commenced by your petitioners, pursuant to the terms of said order of the day of , 1893, a copy of said notice being hereto annexed, marked " C," and copies thereof will be mailed to all the creditors of said corporation known to your petition- ers during the present month, as in said order directed. Your petitioners therefore pray that, to conform the pro- ceedings in this court to those in the court of chancery of RECEIVERS ORIGINAL PROCEEDINGS. 7IS New Jersey, this court will make an order in terms similar to those of the chancellor of New Jersey aforesaid, limiting the time within which the creditors of said company shall bring in and present their several claims and demands, and directing notice of such order to be published in such news- paper as this court may direct, and that in default of presen- tation of such claims pursuant to such order and notice, the said creditors be debarred from participating in any dividend or distribution of assets of said corporation which may be made by the receivers. And your petitioners will ever pray, etc. S. M., Y. & Y., H. C, Solicitors for Receivers. Receivers. {Attach exhibits "^," "^," a«rf"C."] No. 591 . Verification of Above Petition. State of ■ County of , ss. S. M. and H. C, the receivers of the C. D. Co., and as such petitioners in the foregoing petition named, being severally duly sworn, say that the facts set forth in the foregoing petition by them subscribed are true. S. M. H. C. Subscribed and sworn to before me this day of , 1893- J. N., r&«/.] Notary Public. No. 592. Notice to Creditors to Prove Claims before the Master. The Circuit Court of the United States for the District of . The A. B. Trust Company vs. [in Equity No. The C. & D. Railroad Company, et al. 7l6 SUITS IN EQUITY. On the day of , A. D. , the said court made an order in substance that said cause be referred to H. M., as Master, to take and state an account of the indebtedness of the receiver of said railroad company, and also of the indebted- ness of the said company itself, as to all claims and demands for materials, supplies and labor and other services rendered to the said receiver, and also to the said railroad company, within six months prior to the appointment of the said receiv- er, and of all traffic balances with other railroad companies accruing within six months prior thereto; Ordered, that, except as hereinbefore noted, all and any accounts and demands for which a preferential right may be claimed or asserted, be produced and proved before the said Master on or before the day of , under penalty of thereafter being disallowed, within the discretion of the court. Creditors and claimants who are specifically made parties to the above entitled suit are excepted from the operation of said order of said court. Ordered, that said Master give published notice to claim- ants to present their accounts and demands before him, as aforesaid, once a week for two successive weeks in one news- paper of general circulation in , and one newspaper of general circulation in the city of . Special attention is called to the shortness of the time for presentation of claims and to the desirability of promptness on the part of creditors. H. M., Master in said cause. No. 593. Receiver's Petition for Authority to Purchase Rails and Ties. The Circuit Court of the United States for the District of . RECEIVERS ORIGINAL PROCEEDINGS. ^^7 In Equity. The A. B. Trust Company, Complainant,' vs. The C. & D. Railway Company and the E. & F. Railway Company. The petition of S. M. and H. C, receivers of the C. & D. Railway Company, respectfully shows: First. On the lines of the railway in the possession of your receivers, there are portions of the track, aggregating to many miles, which are laid with iron rails, and which are light in weight, and badly worn out, so that trains cannot be operated with safety and ordinary speed over the same. Setae of the more important points where such iron rail is laid and where the same is peculiarly dangerous and un- safe are the following: {Naming the points as near Waco, Texas, twenty-five (25) miles; between Denton and Dallas, Texas, thirty-eight (38) miles]. Second. The main line of the C. & D. railway extends from , to , a distance of about eight hundred and thirty-three miles. The total mileage of the C. & D. railway and the kind of rails used is given in an itemized form, at- tached hereto, marked Exhibits "A" and " B." Exhibit " A " shows the mileage and weight of rails south of Denison, and Exhibit " B '•' that north of Denison. Third. It would be inexpedient and not at all advisable, in the judgment of your receivers, to buy iron rails to replace those which are worn out or are in a bad condition, as her-ein- before stated, but that the best course to pursue is to replace those worn out and useless rails with the light-weight steel rails, fifty-two pounds and fifty-six pounds, taken from the line between and , and to restore the places between and , from which the fifty-two pound and fifty-six pound rails are taken, with sixty-three pound steel rails. Fourth. Your receivers have made a careful investigation and believe that the best interests of the railway in their pos- session require that instead of buying iron rails they should 7l8 SUITS IN EQUITY. buy steel rails of sixty-three pound weight ; that the sixty-three pound rail is that being generally put in at the present time by all good railroads. Railroads now in operation are put- ting sixty-three pound rails into their main lines. If per- mitted to buy sixty-three pound steel rails, your receivers can take the fifty-two pound and fifty-six pound rails from its main line between , and , and use them in putting the railroad at the points hereinbefore referred to in a safe con- dition and then put the sixty-three pound rails into the main line. Fifth. In order to put the lines of railway in charge of your receivers in proper condition it will be necessary to have them purchase about fifteen thousand tons of steel rails of sixty- three pounds weight, and all angle bars, bolts and spikes for properly laying the same, so that the same may be delivered in time to be laid during the next year, and that about two (2,000) thousand tons of said rails should be delivered during the present month, three (3,000) thousand tons during the month of January, , and one ( 1,000) thousand tons on each succeeding month until wholly delivered. Sixth. The receivers are advised that the present is a favor- able time to purchase steel rails ; that it is necessary, in order to have the steel rails when needed, that the contracts therefor should be made in advance. Seventh. Your receivers further show that in order to place the lines of railway in their charge in proper repair, and to maintain the same, it will be necessary to purchase ties, and that such ties should be contracted for at as early a date as possible. Wherefore, your petitioners ask an order authorizing them to purchase fifteen thousand tons of sixty-three pound steel rails, and ties in sufficient number to keep and maintam the load in proper repair. X. & X., Solicitors for the Receivers. RECEIVERS ORIGINAL PROCEEDINGS. 719 State of , County of , ss. We, S. M. and H. C, receivers of the C. & D. Railway Company, have heard read the foregoing petition, and the facts therein stated are true, as we verily believe. S. M. H. C. Subscribed and sworn to before me, this day of , A. D. . [6"ra/.] P. H., Notaiy Public. No. 594. Order Authorizing Receivers to Purchase Material, etc. In the Circuit Court of the United States for the District of . The A. B. Trust Company vs. The C. & D. Railway Com- pany et al. On application of the receivers heretofore appointed in this case it is ordered that they be authorized to purchase the material and contract for the completion of fifteen miles of road from to , in , and that if necessary they borrow money for the carrying out of this contract on the credit of the property in their possession. W. T., Dated . Circuit Judge. No. 595. Order Authorizing Receiver to Pay Master's Fees. The Circuit Court of the United States for the District of . The A. B. Trust Company vs. The C. & D. Railway Com- pany et al. 720 SUITS IN EQUITY. The petition of E. E., of. the city of , for the payment by the receivers herein of the sum of dollars for moneys advanced by him to pay the fees of Samuel A. Blatchford, Esq., the Master in the suit of M. B. against the C. & T). Railway Company, in the Circuit Court of the United States for the district of , as is more fully set out in the said petition, coming on to be heard, and the court being fully advised, now, on motion of R. X., Esq., of counsel for the said E. E., it is — Ordered, that the receivers herein be and they are hereby directed to pay unto the said E. E. the said sum .of dol- lars in full of his advances for Master's fees, as in the said petition is fully set forth. Dated . No. 596. Petition of S. M., Receiver, for Authority to Borrow $150,000 on Receiver's Certificates. The Circuit Court of the United States, District of . The A. B. Trust Company, Trustee, ] In Equity. vs. The C. & D. Railroad Company, No. . To the Judges of the Circuit Court of the United States for the District of . S. M., receiver, shows to the court that he is indebted as re- ceiver to sundry persons and corporations in the sum of $150,- 000 on account of materials and supplies furnished to him, and services rendered to him, and traffic balances to other railroads due from him. Said indebtedness was incurred by your petitioner in operating said C. & D. railroad, as receiver, in pursuance of the orders of this court, in the regular course of the business of said operation and was necessary to said operation. RECEIVERS ORIGINAL PROCEEDINGS. 72 1 There is due your petitioner, as receiver, from the T. Com- pany, a corporation organized under the laws of the state of — ^ — , heretofore owning and operating mines along the line of said railroad, and the principal shipper over said railroad, the sum of $ , on account of freight due to your petitioner from said the T. Company. On or about day of , said the T. Company, being insolvent, was placed in the hands of a receiver by the order of this court. Your petitioner is therefore unable to collect any of said indebtedness due to him from said company. There is also due to your petitioner from sundry railroad companies, on account of traffic balances accruing since your petitioner's appointment as receiver, the sum of $ , which said companies refuse to pay, and which your petitioner is unable to collect, because said C. & D. Railroad Company is indebted to said railroad companies on account of traffic bal- ances accruing prior to the appointment of your petitioner as receiver, and said railroad companies insist upon setting off said indebtedness of said C. & D. Railroad Company against their indebtedness to your petitioner, as receiver. By reason of said insolvency and failure of the T. Com- pany and said refusal of said railroad companies to pay traf- fic balances due to your petitioner, your .petitioner is without funds to pay said indebtedness of $150,000 due from him as receiver. Your petitioner therefore prays for authority to borrow $150,000, as receiver, upon receiver's certificates. R. X., S. M., Counsel. Receiver. 722 SUITS IN EQUITY. No. 597. Order Authorizing Receiver to Issue Receiver's Certificates to the for $150,000. [Caption.] It appearing to the court that the receiver has not funds on hand with which to pay the Lane Machine Company the sum of $150,000 which the court, by its order entered herein , authorized the receiver to pay to said company in set- tlement of its claim for the Thornburgh unloader at , and that it is necessary to make said payment in order to secure the benefit of said settlement, and that said machine is necessary for the operation of said railroad, and that said Lane Machine Company is willing to accept receiver's certificates for said amount bearing interest at five per cent, per annum from , and maturing not later than , It is now on this day of , ordered, adjudged and decreed by the court that S. M., receiver, be and he is hereby authorized to issue and deliver his three certificates, as receiv- er, to said Lane Machine Co., for the sum of $5,000, each, bearing interest at the rate of five per cent, per annum from , and maturing on or before , the same to be re- ceived and accepted by said Lane Machine Company in pay- ment of said machine and in full settlement of the claim cov- ered by said order of the court entered herein . Said certificates shall be a first lien on all and singular the prop- erty of the defendant. The C. & D. Railroad Company, now by it owned or hereafter acquired, and upon the income there- of, and shall be prior in right to the mortgage of the A. B. Trust Company and to the mortgage of the E. & F. Trust Co., trustee, provided that nothing in this order shall in any wise prejudice or affect the lien, if any exists, of the receiver's cer- tificates issued and now outstanding under and in pursuance of the orders of the Court of Common Pleas of county, , in case No. 6491, on the docket of that court, of the RECEIVERS ORIGINAL PROCEEDINGS. 7^3 E. & F. Trust Company against the C. & D. Railway Company; and provided further that the lien of the certificates issued under this order shall be of equal rank with the lien of the certificates to the amount of $ issued under the orders of this court, entered herein , and , and with the lien of the certificates to the amount of $- issued or to be issued under the order of this court entered herein on , and with the lien of the certificates to the amount of $ issued or to be issued under the order of this court entered herein on , and that none of the certificates issued under this order, or under said orders of , and , shall have any priority the one over the other. The certificates under this order shall be countersigned by the clerk of the court and registered by him in a record to be kept by him for that purpose, and shall be in the following lorm : [Here set out form as in next form below.] No. 598. A Receiver's Certificate. The C. & D. Railroad Company. Receiver's Certificate of Indebtedness. This is to certify that S. M., receiver of the C. & D. rail- road, as such receiver, and not individually, is indebted unto the Lane Machine Company, or the bearer hereof, in the sum of ($ ) dollars payable on or before , with interest from , at the rate of five per cent, per annum, out of the earnings of said C. & D. railroad, first after such payments as may be necessary for the operation of said railroad, or out of the proceeds of the sale of the said rail- road property, in the event the same is sold, before the bonds secured by the mortgages hereinafter mentioned are paid. This certificate is one of three of $ each issued under the authority of an order of the Circuit Court of the United 724 SUITS IN EQUITY. States for the District of , division, made , in a cause pending in said court, wherein the A. B. Trust Company, trustee, is complainant, and said the C. & D. Rail- road Company is defendant. The said three certificates are by the terms of said order a first lien on all and singular the property of said the C. & D. Railroad Company, owned by it at the date of said order, or thereafter acquired by it, and upon the income thereof, and are prior in right to the mortgages of the said railroad com- pany to said the E. F. Trust Company and the A. & B. Trust Company of the city of -; provided, however, that the said certificates shall not in any wise prejudice or affect any lien of receiver's certificates issued and now outstanding un- der and in pursuance of the orders of the Court of Common Plea:s of county, , in suit No. , of said E. F. Trust Company of the city of against the C. & D. Rail- way Company, and provided further, that the lien of the cer- tificates issued under said order of , shall be of equal rank with the lien of the certificates to the amount of $ which have been issued by said S. M., receiver, under the orders of said Circuit Court of the United States for the dis- trict of , division, entered in said cause on , and , and with the lien of the certificates to the amount of $ issued or to be issued by said S. M., receiver, under the order of said court entered in said cause on , and with the lien of the certificates to the amount of $ issued or to be issued by said S. M., receiver, under the order of said court entered in said cause on , and that none of the certificates issued ujnder said order of , or under said orders of , and , shall have any priority the one over the other. This certificate shall not become obligatory until counter- signed by the clerk of the Circuit Court of the United States for the district of , division, and certified by RECEIVERS ORIGINAL PROCEEDINGS. 725 him that the same has been duly issued under the order of the court. This is to certify that the foregoing certificate has been duly issued by S. M., under the order of the Circuit Court of the United States for the district of , division, therein mentioned. Witness the seal of said court and the signature of the clerk thereof, this day of . [Seal.'] B. R., Clerk. In witness whereof, the said S. M., as receiver aforesaid, but not individually, has signed this certificate this day of . S. M., Receiver. No. 599. Order Allowing Receiver to Renew Notes. [Caption.] It appearing to the court that S. M., receiver, has not funds with which to pay at their maturity the notes to the amount of $ which he has issued pursuant to the order of this court entered on , and that the holders of said notes are willing to extend or renew the same for six months, it is now, on this day of , ordered that said S. M., receiver, be authorized to renei^r or extend said notes for a period not exceeding six months from the date of their matur- ity, with interest at a rate not exceeding six per cent, per annum. And it is further ordered that said S. M., receiver, shall re- reserve and set aside $ of the certificates authorized to be issued by the order of this court entered on , and that he shall not issue or use said certificates unless or until the notes authorized by this order to be extended or renewed are paid, and only to the extent and in the proportion that the same are paid. 726 SUITS IN EQUITY. No. 600. Petition by a Receiver of a Lessee Railroad Company to Re- place Bridges under Terms of Lease (i). ICaption.l Your petitioner having heretofore, on the day of , been appointed by this honorable court receiver of the property of the C. & D. Railway Company, the defendant herein, with direction to operate the same as a common car- rier, and having entered upon his duties as such receiver and continued in the exercise of same to the present date, respect- fully represents to the court: That after a careful examina- tion and inspection thereof recently made by G. B., a civil engineer of high attainment and authority in such matters, who was also in charge of the construction of said railway, including the bridges, and who is familiar therewith, and after a like examination, made by competent employes of your receiver, he finds that: The following expenditures for bridge replacement are nec- essary to be incurred in order to properly and safely continue the operation of said railway in the business of a common carrier : [Here state the bridges desired to be replaced as: 1. Two spans, 187 feet long, of the north ap- proach of the bridge of said railway at Cin- cinnati, over the Ohio river, at an estimat- ed cost of $35,000 2. Three spans of the railway bridge over the Ohio river at Cincinnati, in length, 112 to 120 feet, to cost, as per contract already let $i7>35o] The ownership of the defendant railway company in the said railway is that of lessee under and by virtue of a cer- tain lease made the day of , by the trustees of the Cincinnati Southern Railway to the defendant herein, for the term of twenty-five years then next ensuing, at an annual RECEIVERS ORIGINAL PROCEEDINGS. ^ij rental of $ , for the first period of five years, $ for the second period of five years, $ for the third period of five years, $ for the fourth period of five years, and $ for the fifth period of five years, in addition to the sum of $ , paid by him yearly to the trustees of said railway in accordance with requirements of said lease. Clause five of said lease contains the obligations of the defendant, as lessee, concerning repairs, replacements and re- newals, wherein the defendant company agrees that it would : " Whenever needed, do all repairs, replacements and renew- all on said line of railway," and that it would " maintain, pre- serve and keep the same and every part thereof in thorough repair, working order and condition," and that it would at the end of said lease "re-deliver and surrender the same with all conditions to and improvements thereon, in such thorough repair, working order and condition, in which they are re- quired to be put and kept by this lease, and such repairs and renewals to be made by the party of the second part, shall include, among other things, the arching with brick or stone of the tunnels now lined with timber, or untimbered tunnels which require arching; the filling of all wooden trestle work required to be filled, and replacing all other wooden works and bridges with permanent structures of stone and iron." Your petitioner says that such bridge replacements are made necessary by reason of defective workmanship in the original construction of said bridges, as well as by the fact that said bridges when built, were designed to carry loads very much less than the weight of loaded cars now necessarily in use on said roads and generally throughout the United States. Your petitioner asks the authority of the court for mak- ing such expenditures, and that it instruct him whether the same shall be charged by him to the said lessee, the defendant herein, or to the city of Cincinnati, by deducting same from the rent aforesaid reserved in said lease in favor of the city 725 SUITS IN EQUITY. of Cincinnati, which your petitioner as such receiver aforesaid is paying, as in the former event it may become necessary that your petitioner borrow the money by means of certificates to pay for said expenditures, and he will ever pray, etc. State of , County of , ss. S. M., being by me first duly sworn, says that allegation of the foregoing petition is true as he verily believes. S. M. Sworn to before me and subscribed in my presence this day of , A. D. . S. E., [Seal.'] Notary Public for County, (i) Taken from the record in the case of Thomas vs. C. N. O. & T. P. Ry., pending in Circuit Court of the United States for the Southern District of Ohio. No. 601. Petition of Receiver to Pay for Electric Block System. [Caption.] E. F., hereinbefore appointed receiver of the railway and property of the defendant, respectfully represents to this hon- orable court that the defendant company had, before the ap- pointment of a receiver, purchased certain equipment, pay- ments for which were to be made in installments ; that the company had paid many of such installments, and that it is necessary to pay the remaining ones in order to save those already made, and secure the property free of the lien for balance due, the present value of the property being in excess of the undue payments. He further respectfully represents that during the past two years said company has been carrying out a system of electric block signals in the mountain region over which the road operated by the company passes, and about $23,000 has al- ready been expended thereon, and that prior to his appoint- RECEIVERS ORIGINAL PROCEEDINGS. 729 ment, the company had negotiated for twenty-four additional block signals for said region, which were necessary to continue said system, at a total expense of about ten thousand dollars ; that said region is uninhabited, and it would be very much more expensive to use an ordinary block system than such self-operating electric one ; that the use of said block system has since its adoption saved to the company a very large sum of money, over and above its cost, and that the remaining number aforesaid will, your petitioner believes, result in equal benefit. Your petitioner therefore respectfully asks the authority of the court to complete such payments on equipment and to purchase and put in operation the remaining block signals as aforesaid. E. F., By R. X., Attorney for Receiver. State of , County, ss." E. F., receiver, being duly sworn, deposes and says that the averments of the foregoing petition are true as he verily believes. E. F. Sworn to before me and subscribed in my presence, this day of , A. D. . J. N., ISeaLI Notary Public, County, . No. 602. Order Directing Filing of Receiver's Petition and Service of Copy of this Order on E. A. Ferguson, President Board of Trustees Cincinnati Southern Railway (i). [^Caption.] The receiver heretofore appointed herein having presented to the court a petition to be filed in this cause, showing the necessity for expenditures • for bridge replacements on the 73° SUITS IN EQUITY. railway of the Cincinnati, New Orleans and Texas Pacific Railway Company, to the amount of one hundred and twelve thousand, one hundred and three ($112,103) dollars, by rea- son of the alleged defective workmanship in the original con- struction of said bridges as well as by reason of the fact that said bridges were designed, when built, to carry loads very much less than the weight of loaded cars now necessary for use on the said railway, and generally throughout the United States, and asking the authority of the court for making said expenditures and for instructions whether the same should be charged to the said lessee of the Cincinnati, New Orleans and Texas Pacific Railway Company or to the city of Cin- cinnati, by deducting same from the rent aforesaid reserved in said lease, in favor of said city, which said receiver is pay- ing. And the court having ordered said receiver to file said pe- tition, which has been accordingly filed, does now on its own motion, direct that a copy of said petition and of this order be served upon the trustees of the Cincinnati Southern railroad, requiring them to show cause, if any they have, within twenty days, why the prayer of said petition should not be granted and why the cost of such expenditures should not be charged to the city of Cincinnati, by deducting the same from the rent which said receiver is paying for the use of said railroad. And that the service of this order and of the said petition be made by delivering a copy of the same to E. A. Ferguson, Esq., president of said board. (i) Copied from the record in the case of Thomas vs. C. N. O. & T. P. Ry., pending in the Circuit Court of the United States for the Southern District of Ohio. RECEIVERS ORIGINAL PROCEEDINGS. 731 No. 603. Order Directing Replacements of Bridges to be Made and Reserving Questions as to Party to be Charged There- with (i). [Caption.] The receiver heretofore appointed herein having on the 6th day of March, 1896, filed in this cause a petition showing necessity for expenditures for bridge replacements on the railway of the Cincinnati, New Orleans and Texas Pacific Railway Company, as specified and set forth in said petition, not exceeding the amount of one hundred and twelve thou- sand one hundred and three ($112,103) dollars, and the court being satisfied that there is immediate necessity for said re- placements of said bridges. It is now ordered that said receiver forthwith have said replacements of said bridges made, at an expenditure not ex- ceeding the amount hereinbefore named, other questions sug- gested in said petition, by request for instructions concern- ing the party to be charged with said expenditures are de- ferred for future consideration, without prejudice. (i) Copied from record in Thomas vs. C. N. O. & T. P. Ry., in the Circuit Court of the United States for the Southern District of Ohio. No. 604. Entry Granting Motion to Vacate Order of March 11, 1896, and to Discharge Rule Issued in Pursuance Thereof (i). [Caption.] This cause coming on further to be heard this day on the motion of the trustees of the Cincinnati Southern railway, to set aside that certain order hereinbefore made on the nth day of March, 1896, whereby they are required to show cause why the expenditures necessary to replace certain spans of 732 SUITS IN EQUITY. the Ohio river bridge and Cumberland river bridge of the Cincinnati Southern railway be not charged to the city of Cin- cinnati, by deducting the same from the rent paid to it by said receiver for the use of said railway, or otherwise, the said trustees of the Cincinnati Southern railway having ap- peared by W. T. Porter, their solicitor, and filed their motion to vacate said order of March ii, 1896, and to discharge the rule made upon them in pursuance thereof, and having ap- peared for the purpose of said motion only, and the court be- ing of opinion that the proper mode, if any, in this court, to raise the question intended to be presented by said rule, would be by ancillary bill or by separate and independent bill in equity, and it is now ordered that the motion of said trus- tees to set aside said rule be, and the same is, hereby granted. Said rule is accordingly set aside and vacated and discharged, and this order is made without prejudice to the rights of the parties on the merits of the question involved, as the same may be hereafter presented. (i) Taken from record in Thomas vs. C. N. O. & T. P. Ry., in the Cir- cuit Court of the United States for the Southern District of Ohio. No. 605. Petition for Direction to Receivers. The Circuit Court of the United States, District of . Union Trust Company of New York vs. The C. & D. Railway Company et al. The A. B. Trust Company vs. The C. & D. Railway Company et al. To the Honorable the Judges of the Circuit Court of the United States for the District of . The petition of the Union Trust Company of New York respectfully shows to this court : RECEIVERS ORIGINAL PROCEEDINGS. 733 Petitioner has lately exhibited in this court its bill of com- plaint against the C. & D. Railway Company et al. to fore- close certain mortgages therein described, and that all and singular the allegations in said bill of complaint are true in manner and form as therein made. Petitioner shows that heretofore the A. B. Trust Company, ■complainant in the second above-entitled suit, exhibited its "bill of complaint against said C. & D. Railway Company et al. to foreclose a certain mortgage therein described. The copies ■of said respective mortgages are annexed to said respective bills of complaint. In the suit of said A. B. Trust Company in September, , this court, on the application of complainant, appointed Messrs. S. M. and H. C, receivers of the mortgaged prop- erty, and in the suit wherein petitioner is complainant, this court, in March, , appointed the same persons receivers ■of the property described in said mortgages to petitioner. Petitioner refers to the said bills of complaint, and to the ■exhibits thereto annexed, and to the said orders, and makes the same parts of this petition the same as if incorporated herein. Petitioner further shows that the said mortgages to your pe- titioner are a lien on the said property therein described prior to the lien of the mortgages to said A. B. Trust Company, and that the mortgages to said A. B. Trust Company constitute a lien on the property described in the mortgages to your pe- titioner junior and subject to the lien thereon of said mort- gages to your petitioner. That the mortgages to said A. B. Trust Company are also a lien on property therein described, and which is not described in the mortgages to your petitioner, and on which the mortgages to petitioner are not a lien. By each of the orders entered, respectively, one in each of above-entitled suits, said receivers were directed to keep ac- counts of the earnings of the separate properties described in 734 SUITS IN EQUITY. said respective mortgages, to the end that the rights and in- terests of the several parties therein might be ascertained. Petitioner further shows that it is informed and believes that the part of said property covered by said mortgages to petitioner is valuable and productive of net income over oper- ating expenses, and that the part of said property covered only by the mortgages to said A. B. Trust Company is of very much less value and is productive of very little net income over and above the operating expenses, and is in bad repair and needs the expenditure of large sums for repairs and replace- ments. That since the possession of said receivers they have filed in this court their accounts for the first two months of their operation of said property, to wit, for November and De- cember, . Said receivers in said accounts have divided the said prop- erty into seven divisions, and state the earnings and expenses of each. The property in the first four of said divisions, to wit, [naming them as Missouri, Kansas and Texas, North Divi- sion, Hannibal and Central Missouri, Tebo and Neosho, Union Pacific, Southern Branch,] is all covered by the mortgages to petitioner. By the report of said receivers the earnings for said two months of the property, subject to petitioner's mortgage, amounted to $679,153.76, and the expenses charged to the same amounted tO' $424,409.99, the difference, $234,743.77, being net earnings. To that sum the said report shows that $6,666.66, rental of Osage division, should be added, making net earnings of $261,410.43. Deducting from that sum the taxes for the Missouri and Kansas portions of the property, to wit, $68,286.64, leaves $193,123.79 as the net earnings of the part of the property covered by petitioner's mortgages. RECEIVERS ORIGINAL PROCEEDINGS. 735 The said report shows that the earnings of the property not covered by petitioner's mortgages for said two months were $452,820.34, and the expenses charged to the same amounted to $370,164.74, and the difference, $82,655.60, constitute the net earnings. Said report, however, shows that the taxes on the Texas property were $50,128.33, which, when deducted, leave the net earnings of the property not covered by petitioner's mort- gage $32,527.27, as against net earnings of property covered by petitioner's mortgage, $193,123.79. These two items of $193,123.79, for the property covered by petitioner's mortgages, and $32,527.27, for the property not covered by petitioner's mortgages, make the total of net income of $225,651.06, as stated in said receivers' accounts to December 31, 1888. The net income of the property not covered by petitioner's mortgage is therefore but little more than one-seventh, and that of the property covered by petitioner's mortgage little less than six-sevenths, of the total income of the whole prop- erty, the one-seventh of said net income being $32,235.86 4-7. Petitioner is informed and believes that the receivers have spent and are spending a large amount of the net income from the property covered by the mortgages to petitioner on the property not covered by said mortgages, to the injury of the petitioner and petitioner's cestui que trust, holders of bonds secured by said mortgages to petitioner. Petitioner is advised that all and singular the net income of the property covered by petitioner's mortgages should be ap- plied, first, to such repairs and replacements as may be nec- essary to preserve and protect the property covered thereby pending the said suit of petitioner, and thereafter to the pay- ment of the interest on the bonds secured by said mortgages to your petitioner, and that so long as any interest is due and unpaid on said bonds secured by said mortgages to your pe- titioner, none of said net income should be spent for the 736 SUITS IN EQUITY. care or improvement of property not covered by said mort- gages to your petitioner. Petitioner has virithin the last day or two, in New York city, been informed by Mr. H. C, one of said receivers, that said receivers are spending the income of said property in the re- pair and replacement of the whole property wherever it may be needed, without regard to. where it has been earned ; and petitioner is informed and believes that much more than the share of said net income belonging thereto and earned thereby is being spent on the property on which petitioner's mortgage is no lien. Petitioner is further informed and believes that the net income of the said respective portions of property since the date of said report to the present time is in about the same proportion as is stated in said report for the time covered by said report, to wit, that the property not covered by peti- tioner's mortgage earns but about one-seventh thereof. Petitioner is further informed and believes that the ac- counts of said receivers are or should be balanced monthly, and petitioner alleges that the receipts of copies of monthly balances would greatly facilitate petitioner in discharging its duties to its cestui que trust, the holders of bonds secured by said mortgages. Wherefore petitioner prays that the said receivers may be directed to spend no part of the income derived from or earned by the property covered by the petitioner's mortgages upon property not covered by petitioner's mortgages, and that all the income derived from the property covered by pe- titioner's mortgages over and above the operating expenses thereof be held and reserved pending the suit for the benefit of said property and the payment of the interest on the bonds secured by said mortgages, and that if said receivers do not already do so, they be directed to have their accounts balanced at least monthly, and that copies of such, balances, or of state- ments of accounts made at least monthly, should monthly be RECEIVERS ORIGINAL PROCEEDINGS. 737 furnished to petitioner, and that petitioner may have such oth- er or further relief as may be just. Union Trust Company of New York, By E. K., President. X. & X., Solicitors for Petitioner. G. S., Of Counsel. State of , County of , ss. E. K., of the city of , being duly sworn, says that he is president of the Union Trust Company of New York, and knows the contents of foregoing- petition, and that the same is true to the best of deponent's knowledge, information and belief. E. K. Subscribed and sworn to before me, March 29, 1889. lSeal.2 J. v., Notary Public, County. No. 606. Order in re Petition for Direction to Receivers. l/^aption.] And now comes the Union Trust Company of New York, by its solicitors, and it appearing to the court that said the Union Trust Company has filed its petition in the above-en- titled suits for direction to the receivers therein as to the ap- plication of the income of said road, and praying that said receivers may be directed to spend no part of the income de- rived or earned by the property covered by the mortgage given to the Union Trust Company upon property not cov- ered by said mortgage given to said the Union Trust Company, and that incomes derived from the property covered by said mortgage given to the Union Trust Compaiiy, over and above 738 SUITS IN EQUITY. the Operating expenses thereof, be held and reserved pending said suits for the benefit of said property and payment of the interest due upon the bonds secured by said mortgage to the Union Trust Company, and for other purposes as in said pe- tition set forth. And the same having been presented to the court, it is ordered that the same be set down for hearing before me, at chambers, in the city of , on the day of , at 10 o'clock a. m., or as soon thereafter as counsel be notified of the time and place of the hearing thereof. Dated . No. 607. Petition of Receiver for Protection (i). [Caption.] To the Honorable the Judges of the United States Circuit Court for the District of . Your petitioner, S. F., respectfully represents that by an order of this court made on the day of , he was appointed receiver of the C. D. Company, owner, as lessee, of a line of railroad from the city of and state of , through the state of to the city of in the state of , with directions tO' operate the same as a common car- rier of passengers and freight, which he has been doing ever since and which he is still engaged in doing. Your petitioner further says that, owing to the falling off in the receipts of the railroad from causes beyond his control, it became necessary to reduce the wages of the officers and employes employed by him as such receiver, in the operation of said road, and that accordingly on the day of , he issued an order reducing by ten per cent, monthly salaries exceeding $35.00, or daily wages exceeding $1.10 to be ef- fective on the first day of . Your petitioner further says that A. B. and others, claim- ing to represent the employed of said road, did file in this RECEIVERS ORIGINAL PROCEEDINGS. 739 cause their peition on the day of , asking the .court to modify said order of , and that said petition was fully heard by this court upon the evidence and was upon argu- ment and after due consideration thereof denied and dismissed by an order herein made on the day of , and that most of said employes, as your petitioner is informed and be- lieves, acquiesce in said decision and wish to continue in the employ of your receiver, but that others are not satisfied therewith and propose to leave the employ of the receiver; that your petitioner recognizes the right of any of said em- ployes to leave his employ if dissatisfied with their wages and is prepared to fill their places with new men, should they withdraw. But your petitioner says that as a result of care- ful investigation he has reason tO' believe and does believe that such dissatisfied employes propose " to tie up " the road operated by your petitioner, that is, to interfere with and ob- struct the operation of said railroad and of said property at , and other places, by molestation or otherwise, and that there is imminent danger that they will, by themselves and others, interfere with the operation of said railroad and said property at , and other places, by your receiver in this cause, and that there is imminent danger of damage and de- struction being done at said places at their hands, for pre- vention whereof your petitioner asks that by an order of this court the marshal of the United States for the District of be directed to take such means by the appointment of sufficient deputy marshals as may be necessary to fully pro- tect said property and persons engaged in the operation there- of from molestation of any sort or description by any person or persons not authorized tO' interfere therewith. S. F. IVerification.'] (i) This petition was filed in the case of Thomas vs. C. N. O & T. P. Ry., pending in the Circuit Court of the United States for the Southern District of Ohio. For order on this petition granting relief prayed, see No. 608. 740 SUITS IN EQUITY. No. 608. Order Directing Marshal to Appoint Deputies to Protect Property in the Hands of Receiver (i). ICaption.] S. F., the receiver of this court heretofore appointed in this cause, having by his petition this day filed herein made it appear to the satisfaction of this court that there is danger of damage ta the property of the C. D. Company in the state of , in his possession as receiver of this court, and of in- tereference with his employes- engaged in the operation, man- agement and control of said property by certain ill-disposed persons ; and said receiver having by his said petition prayed this court to make such orders as may be necessary for the protection of said property and of said employes. It is now hereby ordered that the marshal of the United States for the District of , be, and he hereby is di- rected and required to take all steps that may be necessary and proper to guard and protect the property of the C. D. Company in the District of the state of from any molestation whatever or from any unauthorized interference therewith, or any trespass thereon by any person or persons whatsoever, and to protect the employes of said receiver in said district engaged in the operation, care or control of said property, and that he do appoint such number of deputy marshals and watchmen as may be required to carry this or- der into full effect. Dated . (i) This order was entered in Thomas vs. C. N. O. & T. P. Ry. in the Circuit Court of the United States for the Southern District of Ohio. RECEIVERS ORIGINAL PROCEEDINGS. 74^ No. 609. Intervening Petition to Recover a Judgment of a State Court. \Captton^ To the •Honorable Circuit Court of the United States for the District of : Your petitioner, B. F., who resides in , in the county of -, in the state of , praying for leave to intervene in the the above-styled and numbered cause, and for other orders, respectfully represents to the honorable court that on, to wit, the day of , 1894, prior to the order of this honora- ble court placing the mortgaged property of the said C. & D. Railway Company into the control and possession of the re- ceivers, S. M. and H. C, and prior to the order of the hon- orable circuit court of the United States for the district of placing such property in the control and possession of said receivers, the intervenor herein, said B. F., instituted suit in the justice's court for precinct No. i, in county, , against the T. & H. Railroad Company, on a claim of dollars for damages for material taken and appropriated by the said C. & D. Railway Company in the construction and building of its said railroad ; that the T. & H. Railroad Com- pany is and was the C. & D. Railway Company construct- ing, operating, owning, and controlling under the said name of the T. & H. Railroad Company, a line of railway called the T. & H. Railroad, and running 'from T., in county, , through S, in county, , and into county, , on in the direction of H., in county, , together with a tap or spur running from said town of S, in said county, to the town of I/., in the county of , state of . That during the pendency of said suit in said justice court said property, known as aforesaid as the T. & H. Railroad, was by order of the circuit court of the United States for the district of and by order of this honorable court made in this cause, placed in the pos- session and control of said S. M. and H. C. as receivers as 742 SUITS IN EQUITY. aforesaid. That during the pendency of said suit in said justice court, and after the said order appointing said S. M. and H. C. as receivers as aforesaid, placing said T. & H. Railroad in their possession, in this cause said S. M. and H. C, receivers, were duly served with citations in terms of law to appear and answer the suit of the said B. F. in said jus- tice court, and thereafter, to wit, on the day of , said service of citation on said receivers being perfect and complete, said justice court, at and during its regular term thereof, gave judgment in favor of the said B. F. for the sum of dollars, and for costs of suit, which said costs amount to the sum of dollars against the said T. & H. Railroad Company and against S. M. and H. C, receivers; and said judgment declares and establishes said -sum, together with said costs, as a charge and lien on the earnings of the said T. & H. Railroad Company. And this intervenor says said judgment is a lien of the sixth class on the earnings of said C. & D. Railway, and prays an order of this honorable court conferring the same as such lien and for the payment thereof by said receivers. Your petitioner attaches hereto, marked "Exhibit A," a true copy of said judgment of said justice court, certified to as being true and correct by S. H., said justice trying said cause, accompanied by the certificate of W. W., clerk of the county court of county, , under the seal of said county court, that said S. H. is, and on the day of , was, a duly elected justice of the peace, and that the signa- ture attached to said copy of judgment is the genuine signa- ture of said justice of the peace, and intervenor asks that the same be taken as a part of this petition. And the intervenor prays for such further or other orders respecting said claim as may seem to the honorable court equitable, proper, and necessary under the fact, and so as in duty bound will ever pray. D. H., Attorney for Intervenor, B. F. [Aiiach Exhibit "^4."] RECEIVERS ORIGINAL PROCEEDINGS. 743 No. 610. Certified Proceedings Before Magistrate— " Exhibit A." vs. \ T. & H. Railroad Company, j On this day of , came the parties plaintiff and defendant by their attorneys and announced themselves ready for trial, and came a jury of good and lawful men of county, to wit, J. W., and five others, who, after being duly impaneled and sworn according to law, after hearing the pleadings and evidence in the cause (counsel declining all argument), retired to consider of their verdict, and re- turning into open court submitted the following report: "We, the jury, find for plaintiff dollars, amount of damages claimed. (Signed) J. W., Foreman." It appear- ing to the court that the defendant, the T. & H. Railroad Company, is a corporation engaged in constructing its road and operating the same in county, ; that the said company is justly indebted to the plaintiff, B. F., for dam- ages sustained by him from the appropriation of his earth and soil by said railroad company in the construction of the road-bed of said company in county, in the sum of dollars, as found by the jury; that since the institution of this suit said railroad company and corporation as afore- said has been placed in the hands of the defendants, S. M. and H. C, as receivers ; that said receivers, acting by and through their agent, C. R., and others, have possession of all the property of said corporation, and are operating said rail- road and business in county, , and are receiving all the earnings of said railroad company; that said S. M. and H. C, receivers as aforesaid, have been duly cited to answer the demand of the plaintiff in this cause. It is therefore ordered and adjudged by the court that plaintiff, B. F., do have and recover of and from the defendant, the T. & H. Railroad Company, and S. M. and H. C, receivers as afore- said, the sum of dollars and all costs of this suit ; and 744 SUITS IN EQUITY. a lien is hereby established and fixed in the earnings of said defendant corporation, the T. & H. Railroad Company, which may now be in the hands of said receivers afore- said, or C. R., agent of said receivers, in county, as aforesaid, and in the earnings of said defendant railroad com- pany which may hereafter come into the hands of said receiv- ers and said R., agent of said receivers as aforesaid ; and said S. M. and H. C. are hereby directed out of the earnings of said railroad company coming to their hands to pay off and satisfy the judgment herein rendered in favor of said plaintiff, B. F., within thirty days from the date of this judg- ment. That if said receivers shall fail or refuse to pay off and satisfy said judgment herein rendered in favor of plaintiff, B. F., within the time as herein directed, then that the said C. R., so representing said receivers in county as aforesaid, is hereby directed to pay off and satisfy said judgment within sixty days from the date of this judgment out of any money coming to his hands, the earnings of said T. & H. Rail- road Company. Upon failure of said receivers and said C. R. to pay off and satisfy the judgment herein given in favor of plaintiff, B. F., as hereinbefore directed, then let execution issue against the defendants, the T. & H. Railroad Company and S. M. and H. C, for the'amount unpaid on said judgment. Done this day of . S. H., J. P. C. Co. No. 611. Motion to Refer Intervention to a Special Master. \Caption.\ In re Intervention of B. F. Now comes B. F., intervener, by counsel, and moves the honorable court that his petition of intervention filed in the papers of this cause on the day of , be referred in all things to E. M., Esq., master in chancery, for his exami- nation and report; and intervenor with respect so prays. D. H., Attorney for B. F. RECEIVERS ORIGINAL PROCEEDINGS. 745 No. 612. Petition to Intervene to Foreclose a Mortgage. [Caption.^ The Petition of the Safe Deposit Company of the city of , State of , Trustee: The petition of the Safe Deposit Company respectfully shows : First. Your petitioner is a corporation duly incorporated, organized, and existing under the laws of the state of , and has been such since long prior to the ist day of June, i8— . Second. The defendant, the E. & L. River Railroad Com- pany, was specially chartered by an act of the legislature of the state of , entitled "An act to organize and incor- porate the E. & Iv. River Railroad Company," which act was duly approved on the day of . Third. On the ist day of June, i8 — , the said E. & I/. River Railroad Company executed its mortgage to your pe- titioner, as trustee, to secure certain first-mortgage bonds as by said first mortgage provided. A copy of said mortgage is hereto attached, marked "Exhibit A," and made part hereof. By the terms of said mortgage the railroad of said E. & Iv. River Railroad Company, and all of its property then exist- ing and to be afterwards acquired, was conveyed to your petitioner, as trustee, to secure certain mortgage bonds in said mortgage particularly described. The number of bonds authorized to be issued under said mortgage was not to ex- ceed , being at the rate of $ per mile of railroad constructed at the time of the execution of the said mortgage, and a further issue of $ per mile as additional road should be constructed in sections not less than miles. Fourth. The railroad of said E. & L. Railroad Company is constructed from , via , to , through the counties of \name all the counties and state^ a distance of about miles. From to is a standard gauge, and from to is a narrow gauge. ,746 SUITS IN EQUITY. Fifth. There have been certified and delivered, and are now outstanding, of the bonds secured by the said mortgage, but the rights of the holders of thereof to share in the protection of the lien of the mortgage is dis- puted by the holders of the remaining bonds, as will more fully appear by reference to the sixteenth section of this petition. Sixth. On the day of , the said E. & L. River Railroad Company executed and delivered to the C. & D. Railroad Company its certain deed or instrument in writing, whereby it conveyed all of its property to the C. & D. Railway Company, defendant herein. The said conveyance was made by virtue of authority claimed by the parties thereto to be conferred by section 4 of an act of the legislature of the state of , approved the day of , entitled "An act in relation to the C. & D. Railway Company, late the U. P. Rail- way Company, Southern Branch," and also by virtue of the charter powers of the E. & L. River Railroad Company. Seventh. On December i, 18 — , the said E. & h. River Railroad Company leased all of its lines then owned and thereafter to be acquired to the M. P. Railway Company. Eighth. After the C. & D. Railway Company acquired the E. & Iv. River Railroad, the said railway company turned over, under its lease, the said E. & L. River Railroad to the M. P. Railway Company, which was thereafter operated by the said last-named company, under the lease, as a part of the C. & D. Railway. Ninth. On the day of , a suit in equity was begun in the circuit court of the United States for the district of by The A. B. Trust Co. of , trustee, under the mortgage made by the C. & D. Railway Company, to secure certain bonds therein described, to foreclose the said mort- gage, and for the appointment of receivers for the said mort- gaged property, default having been made in the payment of interest on said mortgage bonds ; in which suit the C. & D. Railway Company and the M. P. Railway Company were RECEIVERS ORIGINAL PROCEEDINGS. 747 made parties defendant, duly served and appeared. The bill of complaint and of subsequent pleadings and proceedings in the said United States circuit court for the district of- have been, under the order of this court in this cause, filed herein, and your petitioner begs to refer thereto. Tenth. On the day of , in the said cause, an order was entered appointing S. M. and H. C. receivers of the C. & D. Railway Company, including all of its properties in \name the states,'] and including the line of railroad here- inbefore referred to as the E. & L. River Railroad. Eleventh. On the day of the ancillary proceed- ings, in which this petition is now presented, were begun by the said A. B. Trust Company in the circuit court of the United States against the C. & D. Railway Company and the M. P. Railway Company, in each of the districts, viz., the northern, southern, and eastern, of the state of , to fore- close the said mortgage of the C. & D. Railway to the said A. B. Trust Company, and in aid of the said suit in , and asking for the appointment of receivers. Twelfth. On the day of , an order was made in each of said courts in , appointing and confirming the said S. M. and H. C. receivers of the C. & D. Railway Com- pany, including all of its lines in the state of , among which was the E. & L,. River Railroad. Thirteenth. Afterwards, on the day of , an amended bill was filed in the original suit in the circuit court of , making certain other railroad companies parties de- fendant, among which was the E. & L. River Railroad Com- pany, and an order was made on that day extending the receivership of the said S. M. and H. C, specifically and by name, over certain lines of road in , among them the E. & L. River Railroad. Fourteenth. On the day of , an amended bill was filed in each of the said circuit courts of the United States for , making certain other parties defendant, among whom was the E. & L,. River Railroad Company, and by an 748 SUITS IN EQUITY. , order entered in the said cause the receivership of tlie said S. M. and H. C. was specifically extended over certain railroads in , and among them was the said E. & L. River Railroad. Fifteenth. By virtue of the original orders appointing them, the said receivers, S. M. and H. C. took possession of all the lines of the C. St^D. Railway Company, including the E. & L. River Railroad, on the day of , and have since been in possession of and operating the same, and they are now in possession of and operating said railroads by virtue of the said original orders and aforesaid orders made upon the said amended bills. Sixteenth. That there were prepared for issue by the said E. & Iy. River Railroad Company, and certified by your peti- tioner, under mortgage dated , \state number] bonds. Of this [state number] bonds are now outstanding injhands of owners whose title is not in dispute, and they allege that the remaining \state number] of said bonds were acquired by the A. B. Trust Company of New York, trustee, under the mort- gage made by the C. & D. Railway Company, under such conditions that the said A. B. Trust Company is not entitled, as against them, to enforce the same as if entitled to the pro- tection of the lien of the mortgage made to your petitioner. A copy of a notice received from the holders of certain of the bonds is hereto attached as "Exhibit B." The said E. & L. River Railroad Company has made default in the payment of the coupons which fell due, and upon all coupons maturing subsequently thereto. Seventeenth. Your petitioner has been requested by the said A. B. Trust Company, as the holder of [state number] bonds, and also by the holders of the said [state number] bonds, to take steps to protect the rights of the owners of the bonds secured thereby, so that the holders of all the bonds now outstanding have now united in the request that this action be taken. Eighteenth. The mortgage of the said E. & L,. River Rail. RECEIVERS ORIGINAL PROCEEDINGS. 749 road Company to your petitioner constitutes a prior and para- mount lien upon all of the railroads and property of the said E. & L. River Railroad Company to any claim of the said A. B. Trust Company or the said C. & D. Railway Company, or any of the other parties to this suit, or to the said foreclosure suit in the said circuit court of the United States for the district of . Nineteenth. Your petitioner further shows that in the said mortgage, made and executed by the said E. & L. River Rail- road Company to your petitioner, it is provided as follows : "In case of default of the payment of any interest upon said bond, and such default continuing twelve months, the whole principal sum mentioned in each and all of said bonds then outstanding shall, at the option of the holders of one- third in interest of the said bonds then outstanding, become due and payable, and in that event, or in case of default in payment of the principal of said bonds, or any of them, at the maturity of said bonds, the party of the second part or its successor or successors in this trust shall foreclose this mortgage by legal proceedings, and sell, or cause to be sold, the said railway and property, and all the rights, privileges, and franchises, and all the appurtenances herein conveyed, as above expressed, including lands and land scrip, as well as all the benefit of the equity of redemption of the party of the first part in and to the same, with the benefit of the franchise aforesaid, which sale shall be at public auction in the city of New York, or at , on previous notice of the time and place of such sale by advertisement, published not less than three times per week for ten weeks, in at least two newspa- pers of general circulation published in the city of New York, two in the city of , and two in the state of , and in such other places as may be required by law." Wherefore, your petitioner prays permission to file a bill to foreclose the said mortgage in the circuit court of the United States for the district of , at , and for the appoint- ment of a receiver thereunder, and for such other and further 750 SUITS IN EQUITY. order in the premises as may be necessary to fully protect the rights of the owners of the bonds secured by said mortgage. R. Z., Solicitor for the Safe Deposit Co. [^Attach exhibits ''A " and "^."] No. 613. Order Granting Leave to Intervene to Foreclose a Mort- gage (i). And now this day of , the petition of the Safe Deposit Company being before the court, upon consider- ation thereof and upon motion of R. Z., solicitor for said peti- tioner, and W. B. appearing for the E. & L. River Railroad Company, and R. X. appearing for the C. & D. Railway Company : It is ordered that the prayer of the petitioner be granted, and that the said petitioner have leave to file a bill to fore- close the mortgage referred to in said petition, and for other relief as prayed for in said petition. A. P., Circuit Judge. (i) Parties may intervene to foreclose a mortgage on a railroad in a suit in which the property is in custodia legis, or file an independent bill, or a cross bill. This question is thoroughly discussed in the case of Compton vs. R. R. Co., 15 C. C A. 397, 68 Fed. Rep. 263; and Toledo, St. L. & K. C. R. R. Co. vs. Continental Trust Co., 36 C. C. A. 155, 95 Fed. Rep. 497 ; see also Morgan's Co. vs. Tex. Central Ry. Co., 137 U. S- 201 ; Lumley vs. R. R. Co., 22 C. C. A. 60, 76 Fed. Rep. 66 ; Blake v.a. Coal Co., 28 C. C. A. 678, 84 Fed Rep. 1014. RECEIVERS ORIGINAL PROCEEDINGS. 751 No. 614. Petition for Leave to Intervene to Replevy Goods Furnished a Manufacturing Company. Now comes the W. D. Co., a corporation organized under the laws of the state of , and represents to this hon- orable court that the said defendant and its receivers have now in their possession and control large quantities of [state the goods, as, Manilla and New Zealand hemps and the pro- ducts thereof, or as may be\, the property of this company received from it by defendant for the sole and only purpose of being manufactured by said defendant into [binder twine, or as may be\ by this company under contract in that behalf entered into on the day of , which hemps and twine are of the value of thousand dollars. Said property is now in large part at defendant's mills in and , in the state of , the exact amount thereof in each mill this company is unable to say, because it is unable to get the re- quired information from said company or its receivers. There is great and imminent danger of said fibre and the twine manufactured therefrom being mixed and mingled with other fibres and twine pertaining to said company, and thus entailing great and irreparable loss upon this company. The company avers that the means of identification are such now as that — if permitted by this court — it can recover its proJ)erty in large amount. This company therefore moves this honorable court for an order for leave to bring an action, or actions, in this court or elsewhere, against said receivers, to enable it to recover its said property and prevent the im- minent and impending loss aforesaid. It further moves the court to require said company and its said receivers to make an immediate statement to this com- pany, showing the exact whereabouts of all its said fibre and the twine manufactured therefrom, and for such other relief as equity and justice may require. X. & X., Attorneys for W. D. Co. 752 SUITS IN EQUITY. No. 615. Motion to Restrain Receivers in Accordance with the above Petition. \_CaJ>tzon.'] The said W. D. Co. now comes and moves the court to re- strain the said receivers from shipping away or dehvering any binder twine in their possession within the jurisdiction of this court to any other person than to said W. D. Co. until the question can be tried as to their right to the same under the contract referred to in their said bill filed herein on the day of . ■ X. & X., Attorneys for W. D. Co. No. 616. Petition for Permission to make Receiver Party to a Suit in a State Court (i). l^Capizon.] C. ly., the above-named petitioner, respectfully shows to your honors, that an action is now pending in the superior court of , a court of the state of , sitting in the city of , in said state, numbered on the docket of said court, wherein said C. L. is plaintiff and the C. & D. Rail- way Company is defendant. In said action your petitioner avers that said defendant has, without her consent and au- thority, and without authority of law, constructed a railroad track on premises owned by your petitioner on the south side of S street, east of H street, in said city; that said defendant has also constructed a railroad track across S street in the neighborhood of said premises of your petitioner without authority of law or the consent of your petitioner; that said defendant was at the time said action was brought maintaining and operating said tracks, and thereby obstructing the ingress and egress of your said peti- tioner to her said property, and using her property ille- gally. In said action your petitioner prayed that the said RECEIVERS ORIGINAL PROCEEDINGS. 753 defendant, the C. & D. Railway Company, might be perpet- ually enjoined from maintaining and operating said tracks, and required to pay the plaintiff the sum of dollars damages for the use of same already had. On the day of , said superior court of , made an order, upon the motion of your petitioner, enjoining the said C. & D. Railway Company, until further orders of said court, from maintaining and operating said tracks on the premises aforesaid of your petitioner and on said S street, upon your petitioner's giv- ing bond in the sum of dollars. Said bond was that day given, and the injunction, as ordered by the court, was issued and served upon the C. & D. Railway Company. On the day of said railway company filed its answer in said cause, taking issue with the averments of your peti- tioner that said track on S street was laid without the au- thority of law, and while admitting that the track, at the time the petition of said C. I/, was filed in said court, was laid upon the premises of your petitioner, averring further that since said track had been removed, and was then sit- uated upon the premises of said railway company; and at the same time said railway company filed its motion praying said court to dissolve said order of injunction. On the day of , by leave of said court, your petitioner filed her reply in said court, admitting that said track that was upon her premises at the time said action had been begun had been moved, but averring that the same as then located was still upon the property of your petitioner. Said injunction is still in full force and unrevoked. Afterwards in this suit brought by A. B. against the C. & D. Railway Company in this court, your honors, upon the day of , i8 — , appointed S. M. receiver of said railroad company. Said S. M. now claims that the order of injunction of said superior court of is not operative and binding upon him; and further, that, as your petitioner is informed, he, the said S. M., is not a party to said cause in said superior court of ; and said S. M. is now using, 75.4 SUITS IN EQUITY, maintaining, and operating said tracks in defiance of said orders of said superior court of , and to the prejudice of your petitioner. Your petitioner therefore prays the leave of this court to sue said S. M. as such receiver, and to cause him to be made a party defendant in said cause now pending in said superior court of , and that he be required to submit himself fully to the jurisdiction of said court with reference to the right of said C. & D. Railway Company, and of himself as its re- ceiver, to construct, maintain, and operate the tracks of which your petitioner in said action complains. C. ly. R. X., of Counsel for Petitioner. (i) It is a general rule, that before suit is brought against a receiver that leave of court must be had from the court appointing such receiver, and suing without such leave is contempt of the court appointing him. See Beach's Modem Eq. Prac, Sec. 744 ; Wiswell vs. Sampson, 14 How, 65 ; Davis vs. Gray, 16 Wall., 203 (218); Naumburg vs. Hyatt, 24 Fed. Rep., 898 ; Thompson vs. Scott, 4 Dill., 508. But see also 25 Stat, at 1,., chap. 866, sec. 3, p. 436 ; 24 Stat, at L., chap. 373. sec. 3, p. 554, and for cases involving a construction of this act, see Missouri Pac. Ry. Co. vs. Texas Pac. Ry. Co., 41 Fed. Rep., 310 (314); Central Trust Co. vs. St. Louis, etc., Ry. Co., 41 Fed. Rep., 551 ; Atkins vs Wabash Ry. Co., 41 Fed. Rep., 193 (194); Pine Lake Iron Co. vs. LaFayette Car Works, 53 Fed. Rep., 853. As to torts, see McNulta w.Lockridge, 142 U. S., i. No. 617. 0r3er Granting Leave to Make the Receiver Party to Suit in State Court. \Caption.\ The petition of C. I/., for leave to make S. M., receiver in this cause, party defendant in an action now pending in the superior court of , numbered on the docket of said court, wherein said C. L. is plaintiff and the C. & D. Rail- way Co. is defendant, having been presented and considered by the court, it is now ordered that the prayer of said peti- tion be granted, and that C. ly. be permitted to cause said RECEIVERS ORIGINAL PROCEEDINGS. 755 S. M., the receiver heretofore appointed in this suit, to be made a party defendant in said cause pending in the supe- rior court of , and that said S. M., receiver, submit him- self fully to such orders as may be made by said superior court of in said action now pending therein. J.S., United States Gircuit Judge. No. 618. Petition for Leave to Garnishee Receiver. The Circuit Court of the United States, District of . A. B., vs. C. & D. R. R. Co. Intervening petition of the Fidelity Trust Company and the Brick Company. Petitioners respectfully show to the court that they are cor- porations duly chartered by the laws of the state of and that they have brought suit in the Circuit Court in said state wherein they seek to recover from the Newport Valley Company the sum of dollars for breach of con- tract and in said suit they have given bond with good surety in the sum of thousand dollars and have obtained a gen- eral attachment against the said Newport Valley Company. Petitioners further show that by an order heretofore en- tered in this cause the receivers have been ordered to pay to the said Newport Valley Company a large sum of money and that, being unable to find other assets of said company in this state, they are desirous of levying their attachment upon the sum so ordered to be paid, by serving the said writ of attachment upon the receivers as garnishees. Wherefore they pray the court to make such order as may be proper and equitable in the premises. R. X., for Petitioners. 756 SUITS IN EQUITY. No. 619. Order on Foregoing Petition. The Circuit Court of the United States, District of . A. B. vs. C. & D. R. Co. Came the Fidelity Trust Company and the Brick Com- pany, and presented their petition, asking leave to serve upon the receivers, as garnishees, a writ of attachment from the Circuit Court, in the state of , in a suit wherein said companies are plaintiffs and the Newport Valley Company is defendant; and the matter having been heard it is consid- ered by the court that petition be filed and that the petitioners have leave to have said writ served upon the receivers. It is further ordered that after such service proceedings to enforce the attachment against said receivers shall not be prosecuted in the Circuit Court, but the claim of peti- tioners may be presented and prosecuted in this suit if peti- tioner shall obtain a judgment in the said state court against the- said Newport Valley Company. No. 620. Intervening Petition for Materials Furnished Railway Com- pany Claiming Preference (i). The Circuit Court of the United States for the Dis- trict of . A. B. vs. C. & D. Ry. Co. To the Judges of the Circuit Court of the United States for the District of . Your petitioner, the E. F. Co., by leave of the court, files this his intervening petition in the above entitled cause and states : RECEIVERS ORIGINAL PROCEEDINGS. 757 That your petitioner is a corporation organized under the laws of the state of with its principal office in the city of , and respectfully shows unto your honors that the bill in this cause was filed by the said A. B. in behalf of him- self and of other creditors of the C. & D. Railway Company against said C. & D. Railway Company, alleging among other things that the said railway company was insolvent and asking for the appointment of a receiver, which said bill has been sustained as a creditors' bill, and S. M. and H. C. have been, under the orders of this honorable court, in this cause, appointed receivers of said railway, and said receivers are now operating and running said line of railroad under the orders of this honorable court in this cause. Your petitioner further states that it is a manufacturer and dealer in different sorts of hardware and other material nec- essarily used in the operation and running of railroads, and petitioner further shows that during the months of and in the year the above named defendant, the C. & D. Railway Company, purchased of your petitioner and your petitioner furnished and delivered to said railway company, different sorts of materials, and at the fair and reasonable price mentioned and set forth in the sworn statement here- with filed and marked Exhibit " A " to this petition and made a part of the same and thus your petitioner avers that said railway company became and is indebted unto your petitioner in the sum of $ for the aforesaid materials which were used in equipping, operating and repairing said railroad and its rolling stock and other property and was necessary for such purposes. Said materials were furnished and delivered by your peti- tioner to the said railway company in the months of and , which was within six months prior to the day of , and for this reason petitioner comes within the provisions and benefits of the order appointing said receiver, and is entitled to have payment in full of its said claim. Pe- 758 SUITS IN EQUITY. titioner has often demanded payment of the said amount and the payment has been refused and is still due and unpaid. Wherefore your petitioner prays for a decree for the amount of said debt, to wit, $ and interest, and that the same may be directed to be paid by the receivers out of the funds now in their hands or out of the first moneys that come into their hands. It prays for general relief. X. & X., Solicitors for Petitioner. ^Verification.'} [Attach itemised statement of account under oath, as "Ex- hibit A."} (l) The well settled doctrine that the "current earnings" of a mort- gaged railroad are applicable primarily to the payment of the current debts made in the course of the ordinary operation of the railroad, arises partly out of the public interest in the maintenance of such a highway for the public use, and partly out of the necessity for such expenditures for the preservation of the property for the benefit of those having liens thereon. The peculiar character of the property and the public character of its use have led to the conclusion that "every railroad mortgagee, in accepting his security, impliedly agrees that the current debts made in the ordinary course of business shall be paid from the current receipts before he has any claim upon the income." Fosdick vs. Schall, gg U. S. 235, 252; Miltenberger vs. Railroad Co., 106 U. S. 286, 311, 312, i Sup. Ct. 140; Burnham vs. Bowen, rii U. S. 776, 4 Sup. Ct. 675; Virginia & A. Coal Co. vs. Central Railroad & Banking Co., 170 U. S. '355, 365, 369, 18 Sup. Ct. 657 ; Southern Ry. Co. vs. Carnegie Steel Co., 176 U. S. 257. The equity in favor of such claims grows out of the fact that they are debts incurred during the current operation of the railroad, and for necessary labor or supplies to maintain it in operation, and under ■circumstances which support the presumption that the expectation was that they would be paid out of the current income. If credit is given "by agreement upon such claims for a time which indicates that there was no expectation that the current earnings were to be applied in their payment, or they are allowed to stand unsettled, and without suit, for such a time as indicates that the creditor has ceased to look to current earnings, he will be regarded as a simple unsecured creditor, relying alone upon the general credit of the company, and not upon the interposition of a court of equity. There is no fixed time limit upon these preferential claims, but six months is now generally fixed by order of court. See discussion of this subject and cases cited in Central Trust RECEIVERS ORIGINAL PROCEEDINGS. 759 Co. VS. East Tenn. V. & G. R. Co., 26 C. C. A. 30, 80 Fed. Rep. 624; and Farmers Loan & Trust Co. vs. R. R. Co., 53 Fed. Rep. 187. The courts have allowed as preferences payable out of the current earnings claims for hardware and supplies to the machinery department of a railroad, Hale vs. Frost, 99 U. S. 389; Gregg vs. Mercantile Trust Co., 109 Fed. Rep. 220; for rails used for repairs. Southern Ry. Co. vs. Carnegie Steel Co., 176 U. S. 257; fbr coal for engines, Burnham vs. Bowen, iii U. S. 776; for cross ties to replace ties decayed, Gregg vs. Mercantile Trust Co., 109 Fed. Rep. 220 ; current traffic balances, Gregg vs. Mercantile Trust Co., 109 Fed. Rep. 220. The courts have declined to allow as preferences payable out of the current earnings claims for repairs which are so extensive as to amount to reconstruction or the construction of new road, as rails, Lackawanna R. R. Co. vs. Trust Co., 176 U. S. 298; or a new dock, R. R. Co. vs. Hamilton, 134 U. S. 296; or for car rentals, Thomas vs. Car Co., 149 U. S. 95 ; Fosdick vs. Schall, 99 U. S. 235 ; Kneeland vs. Trust Co., 136 U. S. 89; or for new locomotives, Rhode Island Locomotive Works vs. Conti- nental Trust Co., 108 Fed. Rep. 5 ; or for money borrowed to pay interest on matured mortgage coupons, Morgan's Co. vs. Texas Central R. Co., 137 U. S. 171.; or claims for legal services rendered a railroad company, Gregg vs. Mercantile Trust Co., 109 Fed. Rep. 220; R. R. Co. vs. Wilson, 138 U. S. £01, 34 L. Ed. 1023 ; or for rentals under a lease for a track and terminal facilities, L. & N. R. R. Co. vs. Central Trust Co., 31 C. C. A. 89, 87 Fed. Rep. 500. No. 621. Intervening Petition for Materials Furnished R. R., Claim- ing Preference over Mortgagee (i). The Circuit Court of the United States, District of . The A. B. Trust Company, Trustee, Complainant, In Equity. vs. The C. & D. Railroad Company, De- No. fendant. To the Judges of the Circuit Court of the United States, District of . Your petitioner, S. G., by leave of the court, files this his intervening petition in the above entitled cause and states : First. That by order of the court, heretofore made herein, on the day of , S. M. was duly appointed and 760 SUITS IN EQUITY. thereafter qualified as receiver of the C. & D. Railroad Com- pany, defendant herein; That in said order appointing said receiver, said receiver was, among other things, directed to pay the employes, ot- ficials and other persons having claims for wages, materials and supplies due, and tO' become due, and unpaid, growing out of the operation of the railroad of the defendant, includ- ing current and unpaid vouchers; to settle accounts incurred in the operation of the defendant company; to pay any and all obligations accrued or accruing upon any equipment trust made by the defendant railroad company, and providing that said receiver should pay no claims against the said railroad company which had accrued due more than six months prior to the date of said order. Second. Your petitioner further states that, as he is in- formed and believes, in pursuance of the several orders of the court, the said receiver has borrowed money and issued receiver's certificates and applied the same as ordered and directed by the court and as a result thereof has, up to this time, except in meeting the obligations of the pay rolls and and any and all obligations upon the equipment trusts made by the defendant railroad company and except as hereinafter stated, been unable to pay the employes, officials and other persons having claims for wages, services, materials and sup- plies at the time of the appointment of said receiver due, and to become due, and unpaid, growing out of the operation of the railroad of the defendant, including current and unpaid vouchers, in pursuance of said order of June , and which accrued due less than six months prior to the date of said or- der of June , and that the claim of your petitioner, here- inafter set forth, being a claim for materials and supplies which accrued due less than six months prior to the date of said order last mentioned and which said receiver was, by the terms of said order as aforesaid, authorized and directed to pay as aforesaid, still remains due and unpaid. RECEIVERS ORIGINAL PROCEEDINGS. 761. Third. Your petitioner further states that large sums of money, which should have been used in paying and discharg- ing the operating expenses of said road and for materials used in said operations, which, in equity, are first charges upon the property of said railroad, have been diverted by said railroad company and its officers and agents operating it, from such purposes, and have been used in making perma- nent improvements upon the roadbed and other properties of said railway company, thereby greatly enhancing the secu- rity of its mortgage and bond creditors, and so your petition- er states that said claim has prior right of satisfaction over any such creditor by mortgage or bond, (i.) Fourth. Your petitioner further states that in pursuance of a contract duly made with the said C. & D. Railroad Com- pany, on to wit, the day of , your said petitioner sold and delivered in the months of and on the day of , as to a part thereof, after the appointment of the said receiver under said order of June , to the said C. & D. Railroad Company and said receiver certain rail- road materials and supplies, to wit, railroad ties, the claim for which was one necessarily incurred and growing out of the operation and maintenance of the said railroad by the said defendant company and said receiver to the number and at the prices set forth in the account attached hereto and made a part hereof marked Exhibit " A " which said account, in accordance with said contract, became due and payable to your said petitioner from said defendant railroad company and said receiver on the day of , and which said account aggregates the sum of $ , upon which there is now due and payable the said sum of $ , with interest at 6 per cent, from the day of . [Set out the other notes in like manner.] That said account was duly presented tO' the said receiver as a claim against said receiver in said amount and as such allowed by said receiver for said sum of $ for material furnished by your petitioner to said company and as a claim 762 SUITS IN EQUITY. which accrued due within six months prior to the appointment of said receiver of said company a copy of which said al- lowance is hereto attached and made a part hereof, marked Exhibit " B." Your petitioner further says that although a part of said ties were delivered to said defendant railroad company prior to the appointment of said receiver, that he is informed and believes and therefore alleges that a large portion thereof, if not all, were used by said receiver after his appointment as aforesaid in the maintenance and operation of said rail- road company by him as such receiver. Your petitioner further states that he also holds as claims' against said defendant company and said receiver certain promissory notes given by said defendant railroad company in payment for certain materials and supplies sold and deliv- ered to said railroad company and payment for which ac- crued due within six months prior tO' the appointment of said receiver. IFirst. One note for $194.96, dated Columbus, Ohio, May 12, 1897, payable to the order of your petitioner sixty days after date at the Clinton National Bank, with interest at the rate of 7 per cent, per annum from date, a copy of which said note is hereto attached and made a part hereof and mark- ed Exhibit " C." Set out the other notes in like manner.^ Fifth. Your petitioner further states that the total amount due from said defendant railroad company and said receiver on account of the claims above set forth is the sum of $ , with interest as heretofore stated. The said receiver is unable to pay the same, although ad- mitting the validity thereof, out of the net earnings of said property in his hands. That as the amount heretofore authorized to be borrowed, or receiver's certificates to be issued therefor, has been used and applied by said receiver as heretofore ordered by the court, the said receiver is not authorized to borrow further sums of money upon receiver's certificates at this time to pay RECEIVERS ORIGINAL PROCEEDINGS. 763 the said claims, nor is he able to carry out the said order of June , directing him to pay said claims, among others, which had accrued within six months prior to his said ap- pointment. That said road has not as yet been sold, nor as your peti- tioner is informed and believes is there at the present time any prospect for the immediate sale thereof and the payment of said claims. That said clainis in the form in which they now are can- not be negotiated by your said petitioner nor otherwise made available to your petitioner and that to compel your peti- tioner to further await the sale of said road, or the reorgan- ization thereof by the bondholders and to be deprived of the money due upon said claims, would work great hardships upon your petitioner. That said claims are a lien upon said road prior to the claims of the complainant or defendants herein and are en- titled to rank with and be paid equally with the receiver's certificates heretofore authorized and issued by said receiver under the orders of the court, as well as the claims for wages, services, obligations upon car trusts and other claims and ob- ligations which have heretofore been paid by said receiver and which to enable the said receiver to pay, receiver's cer- tificates have been authorized by the court and issued by said receiver. Wherefore your petitioner prays: That the said claims amounting to $ , with interest at the rate of 6 per cent, per annum on $ from the day of on $ at the rate of 7 per cent, per annum, from the day of , and on $— — at the rate of 7 per cent, per annum from the day of , may be ad- judged and declared by the court to be lawful and valid claims for materials and supplies due and unpaid, growing out of the operation of the railroad of the said defendant company and which accrued due after or within six months prior to the date of the appointment of said receiver and as such a 764 SUITS IN EQUITY. lien upon said property in the hands of said receiver prior to the claim of the complainant and defendants to said orig- inal bill and of equal rank and validity with the receiver's certificates heretofore authorized and ordered to be issued by the said receiver and issued by him herein. That said receiver may be authorized and directed forth- with to pay the same as such ; that if for any reason the said receiver has not at the time of making such order sufficient funds on hand to pay said claims that he may be authorized and directed to borrow money for such purpose and to that end be authorized and directed, if necessary, to issue receiver's certificates for the purpose of procuring the necessary funds to pay said claim, which said certificates shall be similar in form and of the same tenor, effect and priority as those here- tofore authorized and ordered to be issued and sold, or other- wise used by said receiver, or that said property of the rail- road company may be forthwith sold without further delay and free from the claims of all the parties hereto, and the proceeds distributed in accordance with the priority of liens, as may be established by the court, and for such other and further relief as to the court may seem just and equitable. And your petitioner will ever pray, etc. S. G. R. X., Solicitors for Petitioner. State of County of , ss. S. G., being first duly sworn, deposes and says: That he is the petitioner above named, that he has read the foregoing intervening petition and knows the contents thereof; that as to the facts therein stated on knowledge the same are true and as to those stated on information and belief, he believes the same to be true. And further deponent saith not. S. G. RECEIVERS ORIGINAL PROCEEDINGS. 7^5 Sworn to before me and subscribed in my presence, this day of , A. D. . J. N., [Seal.'] Notary Public, County. (i) As to diversion: There are cases where, owing to special cir- cumstances, an equity arises in favor of certain classes of creditors of an insolvent railroad corporation otherwise unsecured, by which they are entitled to outrank in priority of payment, even upon a distribution of the proceeds of a sale of the body of the property, those who are secured by prior mortgage liens. Illustrations and instances of these cases are to be found in Fosdick vs. Schall, 99 U. S. 235, 25 L. Ed. 339 ; Miltenberger vs. Railroad Co., 106 U. S. 286, i Sup. Ct. 140, 27 L. Ed. 117; Trust Co. vs. Souther, 107 U. S. 591, 2 Sup. Ct. 295, 27 L. Ed. 488; Burnham vs. Bowen, iii U. S. 776, 4 Sup. Ct. 67s, 28 L. Ed. 596; Union Trust Co. vs. Illinois M. R. Co., 117 U. S. 434, 6 Sup. Ct. 809, 29 L. Ed. 963; Dow vs. Railroad Co., 124 U. S. 652, 8 Sup. Ct. 673, 31 L. Ed. 565 ; Sage vs. Railroad Co., 125 U. S. 361, 8 Sup. Ct. 887, 31 L. Ed. 694; and Trust Co. vs. Morrison, 125 U. S. 591, 8 Sup. Ct. 1004, 31 L. Ed. 825. " The rule governing in all these cases was stated by Chief Justice Waite in Burnham vs. Bowen, iii U. S. 776, 783, 4 Sup. Ct. 675, 679, 28 L. Ed. 596, 599, as follows: 'That, if current earnings are used for the benefit of mortgage creditors before current expenses are paid, the mortgage security is chargeable in equity with the restoration of the fund which has been thus improperly applied to their use.' "To bring a claim within this rule it is necessary to allege and prove that there has been a diversion of the current earnings, either before or since the receivership, which the mortgagees should equitably restore. International Trust Co. vs. T. B. Townsend Brick & Contracting Co., 37 C. C. A. 396, 9S Fed. 850; Central Trust Co. vs. East Tennessee, V. & G. R. Co., 26 C. C. A. 30, 80 Fed. 624; Virginia & A. Coal Co. vs. Central Railroad & Banking Co., 170 U. S. 365, 18 Sup. Ct. 657, 42 L. Ed. 1068; Southern Ry. Co. vs. Carnegie Steel Co., 176 U. S. 257, 285, 20 Sup. Ct. 347, 44 L. Ed. 458." No. 622. Master's Report on Intervention. \_Caph'on.]. Special Master's Report in the matter of the claim of J. D. Bros. & Co. against the receivers of the C. & D. Railway Company : To the Judges of said Court : / Under a general order of reference, dated , made in this cause, providing for the examination by the special 766 SUITS IN EQUITY. master commissioner of claims against the receivers ap- pointed herein, to wit, S. M. and H. C, arising from their operation of the defendant railway company's property in J. D. Bros. & Co., a copartnership, doing a general mer- chandise business at , in the county of , state of , filed with me their intervening petition, complaining that on the day of , they shipped from to , in the state of , over the C. & D. Railway, head of beef cattle ; that while said beef cattle were en route to they were injured and delayed, on said railway, to intervenors' damage dollars. By consent of the parties I appointed the day of , at , to consider the matter. At which time and place appeared W. C, solicitor for the receivers, and W. B., solici- tor for intervenors. ■After hearing the evidence and argument of counsel, I took the matter under advisement, and now report my findings : I find that the receivers and intervenors executed on the day of , a certain Hve-stock contract, whereby the former engaged to transport, as common carriers, for hire, head of beef cattle, the property of intervenors, form to the National Stockyards in the city of . I find that in pursuance of this contract head of beef steers were delivered on the same day to said re- ceivers at , and that they were in good condition and of the average weight of eight hundred and fifty pounds a head. I find that thereafter, on the day of , while a train operated by said receivers was transporting said cattle from to , it was detained by a wreck caused by a derailment of one of its cars, at , for twenty-four hours. I find that said cattle were delivered on the day of to the consignee at the National Stockyards in , ) in bad condition, and greatly injured by the wreck and delay. I find that the delay was unreasonable, and not without the fault of the receivers, and. that if said delay had not RECEIVERS — ORIGINAL PROCEEDINGS. ^^^ occurred the cattle would have been delivered to the con- signee on the day of , and in good condition, and that intervenors would have received a better price for them than the price offered and received by intervenors for them on the day of , the same day when they were sold. I find that the difference between the value of these cattle at a fair valuation on these dates amounts to the sum of dollars. Premises considered, I am of the opinion that intervenors are entitled to recover the difference between the price they would have received on the day of , and the price actually received on the day of . I therefore recommend the adoption by the court of a de- cree to the following effect: That intervenors, J. D. Bros. & Co. have of and from S. M. and H. C, as the receivers of the defendant railway com- pany, the sum of dollars, actual damages ; the same to be decreed as a charge upon the current income of the re- ceivership, and a part of the expenses thereof, and all costs in this behalf. Respectfully submitted, - E. M., Special Master Commissioner in Chancery. No. 623. Decree Confirming Master Commissioner's Report on Intervention. \Caption?^ On this day of , came on to be heard the excep- tions of intervenor M. D. to the report of the special master filed herein on the day of , and the same was argued by counsel, where upon consideration thereof, because it is the opinion of the court that the law is against said exceptions, it is therefore ordered, adjudged, and decreed by the court that said exceptions be, and they are hereby overruled, and the report of said special master is in all things confirmed. A. P., Circuit Judge. 768 SUITS IN EQUITY. No. 624. Quarterly Statement of Receiver (i). S. M., Receiver, in Account with C. & D. Railway Company, from July i, i8 — , to September 30, 18 — , inclusive. Receipts. Balance July i, 18 — Agents' remittances Conductors' remittances Mail earnings, . . Miscellaneous earnings Express earnings. Ticket balances, . Mileage balances. Sundry railroads. Sundry individuals, Audited pay-rolls. Total, . Disbursements. Audited vouchers. Audited pay-rolls. Audited claims, . Ticket balances, . Mileage balances, Sundry railroads. Sundry individuals. Car trust notes, . Rental of roadway. Total, . Accrued prior to appoint- ment of receiver and col- lected under receivership. Accrued and col- lected under" re- ceivership. Accrued prior to appoint- ment of receiver. Accrued under the receivership. RECAPITUI^ATION. Receipts. Balance July i, i8 — , .... $ Accrued prior to appointment of receiver and collected under receivership, Accrued and collected under re- ceivership, .,•<,-.. Total, $- RECEIVERS ORIGINAL PROCEEDINGS. 769 Disbursements.* Accrued prior to appointment of receiver, $ Accrued under receivership, . . $ . Total , $ Balance September 30, 18 — , .... $ (l) As to receiver's accounts generally, see Beach's Modern Eq. Prac, Sec. 748. Bates Fed. Eq., Sec. 600. No. 625. Certificate of Special Master to Statement of Receiver. [^Capiz'on.] I, A. H., special master, hereby certify that I have exam- ined the accounts of S. M., receiver, and the receipts and disbursements for the quarter ending September 30, 18 — [the period covered by the foregoing statement], and that I find the same correct and as shown in said statement. Given under my hand this day of , 18 — . A. H., Special Master. No. 626. Petition of S. M. for Discharge as Receiver. The Circuit Court of the United States, District of • In Equity. The A. B. Trust Company vs. The C. & D. Railroad Company. No. Petition of S. M., receiver for order of final settlement and discharge. Your petitioner shows to the court that he has fully ac- counted for all assets and property that came into his hands as receiver, and prays for an order of final discharge, and also for the release of the sureties on his bond as receiver. S. M. State of , County of , ss. S. M., being first duly sworn, says that the allegations of his foregoing petition are true. S. M. 770 SUITS IN EQUITY. Sworn to before me and subscribed in my presence, this day of . J. N., ISeal.l Notary Public, County, No. 627. Order Accepting Resignation of S. M., Receiver, and Appoint- ing J. R. Receiver. This day came S. M., and tendered his resignation as re- ceiver; on consideration whereof the same is accepted to take effect at midnight of , and it is ordered that J. R. be, and he is hereby appointed receiver in the stead of said S. M., resigned, with authority and directions to carry out in his, said J. R.'s, name as receiver all of the orders of the court heretofore entered, the same as if said S. M. had not resigned, and with all the rights, powers, duties and author- ity which said S. M. would have had if he had continued to be receiver, including authority to prosecute and defend all suits brought by or against said S. M., receiver, and to com- mence any suits which the said S. M. might have brought. The accounts of said S. M., receiver, are ordered, for con- venience, to be closed as of 31st, , and all funds and property in his possession as receiver he shall turn over on , at midnight, to said J. R. as his successor. Said J. R. is ordered to execute a bond as receiver, with surety duly approved as to form and suiificiency by this court, or a judge thereof, in the sum of one hundred thousand dol- lars, conditioned upon the faithful discharge of his duties as receiver. No. 628. Order Discharging Receiver (i). [Caption.~\ It appearing to the court that S. M., Esq., receiver herein, filed his account of receipts and disbursements for the month RECEIVERS ORIGINAL PROCEEDINGS. ^Ti- of , on , and his final account for , on , covering the period to , on which dates the receiver ceased operating said road; And it further appearing that the Special Master, appoint- ed to audit said accounts, has filed his report thereon on , finding, among other things, that said accounts are true and correct, that said receiver has turned over to the C. & D. Railroad Company all the property of every kind and descrip- tion which came into his hands as receiver herein; and rec- ommending that said accounts be approved and said receiver discharged. And it further appearing from the receipt of said C. & D. Railroad Company (a copy of which is attached hereto and ordered spread upon the journal), that said receiver has turned over to said company the cash and accounts, amount- ing to $ , and said company has assumed the liabilities of said receiver, amounting to , all as audited to . And it further appearing that no exceptions have been filed to said Special Master's report within thirty days after the same was filed ; It is therefore ordered that said report of the Special Master and the accounts of S. M., receiver herein, be and the same are hereby approved and confirmed in all respects, and said Special Master, J. N., Esq., is hereby allowed the sum of $50 for his services as Special Master, payable out of the funds in the court's registry to the credit of this cause, or if there are no such funds, by the said C. & D. Railroad Com- pany. The court further finds that said S. M., receiver, has faith- fully discharged the duties of his office, and obeyed in all respects the orders of this court, and his acts as receiver herein are hereby approved and confirmed; and there being no cause why said receiver should not be finally discharged; It is, therefore, ordered, adjudged and decreed that said S. M., as receiver in this cause, be, and he is, hereby dis- ^"^2 SUITS IN EQUITY. charged from further duties herein; and the sureties on his official bond, as receiver, are hereby released and discharged. (i) As to discharging receivers, see Bates' Fed. Eq., Sec. 6i6. No. 629. Order Discharging Receiver (Another Form). {Caption.^ In this cause upon application of the Southern Railway Company the purchaser of the property of the C. & D. R. R. Co., sold under decrees of the court herein and the other parties hereto for an order discharging E. F. and G. P., receiv- ers heretofore appointed herein upon consideration of which it is ordered and decreed that upon the execution of the de- cree confirming the report of the sale made herein by the Special Master on February , and the surrender by them of the possession of said properties to the purchasers by said receivers as directed therein, said receivers shall be dis- charged from further responsibilities herein and their bonds as such shall be surrendered and collected. The Southern Railway Company hereby waiving an accounting by said re- ceivers. The Southern Railway Company having entered its appearance herein and assented thereto, is hereby substi- tuted in the room and stead of said receivers and is substi- tuted in their room and stead in respect of any and all liabil- ities outstanding or against said receivers growing out of their receivership herein or against said C. &. D. R. R. Co., or the proceeds of sale herein claiming priority of payment over the mortgage foreclosed herein with leave to resist the payment of any such claim, and of appealing from any order entered in relation thereto. RECEIVERS ORIGINAL PROCEEDINGS. 773 No. 630. Order Discharging Railway Receivers and Restoring Property. \Caption.\ A decree having been entered in this suit upon the day of , wherein and whereby it was, among other things, ordered, adjudged, and decreed that the C. & D. Rail- way Company should, on or before the expiration of thirty days from the date of the said decree, pay into this court, or into the hands of a depository to be named by this court, to the credit of this suit, for the use and benefit of the holders of the bonds and unpaid coupons secured by the ^mortgage of December i, i8 — , and the several mortgages and the cer- tain indenture supplemental thereto, the sum of dollars, together with the amount of interest accrued or to accrue on the said bonds from the ist of December, i8 — , to the time of such payment, and also a sum of money suf&cient, in ad- dition, to defray the costs of this action. On reading and filing a satisfaction piece, dated the day of , duly executed, acknowledged, and delivered by the A. B. Company, of the three certain indentures of mort- gage, dated respectively December i, 1880, December i, 1886, and December i, 1887, and a certain other satisfaction piece, dated the 14th day of October, 1890, duly executed, acknowledged, and delivered by the A. B. Company, of a cer- tain indenture, dated March i, 1882, being the same mort- gages and the indenture referred to and described in the bill of complaint herein, by which satisfaction pieces the A. B. Company certifies that the three mortgages and the certain indenture as aforesaid, and the bonds secured by the same, are paid and satisfied, and consents that the said mortgages and the said indenture be discharged of record. And on reading and filing a stipulation, dated , and signed by the counsel for all parties to this suit, by which it appears that all of the bonds secured by the said mortgages and by the said indenture, and of all the interest due thereon, 774 SUITS IN EQUITY. have been paid by the C. & D. Railway Company to the A. B. Company, trustee; and by which it further appears that the C. & D. Railway Company has also paid and discharged all the other sums of money which by the said decree it was required to pay; and by which stipulation it is also con- sented that a proper order, satisfying and discharging the said decree of the day of , may be entered in this suit. And on reading and filing the petition of the C. & D. Railway Company, verified the day of , praying that the receivers of the railway and property of the peti- tioner be upon the day of discharged, and the said railway and property restored to the petitioner. And on reading and filing the report of the receivers, Messrs. S. M. and H. C, verified on the day of , showing, among other things, the total amount of their re- ceipts and disbursements, substantially, to the date of the hearing upon the motion for the entry of this decree, con- taining also a statement of suits now pending against them as receivers, or against the C. D. Railway Company and any of its ancillary companies, and of all claims filed against or presented to said receivers, or said railway company, so far as they have come to the knowledge of the said receivers, and a general statement of the outstanding liabilities of the said receivers, growing out of the possession, operation, and management of the property of the C. & D. Railway Com- pany by said receivers. And Messrs. S. M. and H. C, receivers of all of the said property, appearing by R. Z., Esq., their solicitor, and the matters and things hereinbefore suggested being submitted to the court, and the court being advised. Now, on motion of R. X., Esq., of counsel for the peti- tioner, the C. & D. Railway Company, It is hereby ordered, adjudged, and decreed as follows : First. That the said decree of the day of , is, in all respects, satisfied and discharged, in so far as the same RECEIVERS ORIGINAL PROCEEDINGS. 775 requires the payment by the C. & D. Railway Company of any sums of money. This cause, however, being retained as and for the purposes hereinafter provided. Second. That the C. & D. Railway Company has duly and fully paid to the A. B. Company, trustee, all the sums ■of money which by the said decree, were directed to be paid ; the said payments amounting to the sum of dollars, to- gether with the amount of interest accrued upon the said ■sum from the ist day of December, i8 — , to the date of the payment thereof; and the said railway company has also duly and fully paid to the said A. B. Company, trustee, and to its counsel, in full, all its and their reasonable commis- sion, charges, fees, and disbursements in the execution of the trust, and in the prosecution of the litigation herein, which said several sums and amounts have, by it and them been accepted by them in full for its and their services rendered herein, and the said railway company has also duly and fully paid all costs and allowances which by the said decree were ■directed to be paid. Third. That on the* day of , at the hour of noon that day, Messrs. S. M. and H. C, as receivers, are hereby ordered and directed to deliver to the C. & D. Rail- way Company all the railroads and other property of the said C. & D. Railway Company, the D. & W. Railway Company, ■etc. [name all the railways included in this order\ wheresoever situated, whereof they took .possession as receivers, under and pursuant to the orders of this court, and under and pursuant to the orders in causes ancillary hereto, and which shall then re- main in their possession or under their control, together with all the assets of every name and nature, funds, books and ac- counts, papers and vouchers in their possession, or under their control as receivers ; and the said receivers shall, con- temporaneously with the delivery of the said railroads and property, assign and transfer to the C. & D. Railway Com- pany all the assets, uncollected accoimts, and choses in action of the said C. & D. Railway Company, or of either of ^^^ suits in equity. the before-mentioned railway companies remaining in their hands, and which have accrued to them as such receivers from the possession and operation of said lines of railway or of any of them ; and the said C. & D. Railway Company, on the day and at the hour aforesaid, to wit, upon the day of , at the hour of noon of that day, shall receive and take possession of all the railroads and other properties, real, personal, and mixed, and of all the funds and assets, books and accounts, papers and vouchers, claims, demands and choses in action in the hands of S. M. and H. C. afore- said, receivers of the C. & D. Railway, heretofore appointed and now acting under orders made in this cause and in the ancillary causes between the same parties pending in the cir- cuit courts of the United States for \here name all the courts wherein ancillary proceedings have been had^; and upon such transfer, assignment, and delivery of the property aforesaid by the receivers to the railway company, the property of the said C. & D. Railway Company and of the other companies heretofore mentioned shall become liable for all claims and demands accrued, accruing, or to aecriie against said receiv- ers, arising out of their possession and operation of the said railroads and property which are and have been in their hands or under their control as receivers, including all claims or demands against them arising out of their opera- tion of the E. & F. Railroad, which has heretofore been sur- rendered under orders made in this cause and in the ancillary cause pending in the circuit court of the United States for the district of at , and also all claims and demands existing against said receivers under their receivership by order of appointment made in the cause pending in the circuit court of the United States for the district of at , wherein the Safe Deposit Company of is plaintiff, and the C. & D. Railway Company, the E. & F. Railroad Company and others are defendants ; and also all the current liabilities of said receivers, and all contracts for which the said receivers are or may be responsible. RECEIVERS ORIGINAL PROCEEDINGS. "JTJ , Fourth. That the said C. & D. Railway Co., and those claiming under them, shall take and receive, on said day of , i8 — , the railroads and properties so transferred, assigned, and delivered as hereinbefore ordered, subject to all claims, demands, and liabilities now existing, or which here- after may be made against said receivers, arising out of their receivership, and this court reserves and retains jurisdiction over the said railroads and properties, and the said parties hereto and those claiming under them, for the purpose of determining in this cause, or having determined in any of the circuit courts of the United States in any of the ancil- lary causes having ancillary jurisdiction herein, all such claims, liabilities, and demands, and for the purpose of fully protecting the receivers against any liability on any claims or demands existing or to exist against them, and for the purpose of protecting those having claims against said re- ceivers. Fifth. That this cause is retained and kept open for the purpose of ascertaining and determining all claims, demands, and liabilities against said receivers, and against the property in their possession, and to be surrendered by them, which have arisen or may arise out of their said receivership. All such claims, demands, and liabilities, if not paid by the C. & D. Railway Co. in due course, shall be made and present- ed by intervention in this cause, or in the causes ancillary hereto, for the purpose of being ascertained and determined in and by such proper intervention proceedings ; and any orders, judgments, or decrees so rendered in such proceedings may be enforced, and shall only be enforced, against the property of the said railway company to the same extent that judgments could have been enforced if said property had not been surrendered into the possession of said company but was still in the possession of said receiver. Such inter- vention proceedings must be filed in this cause in this court, or in any of the circuit courts of the United States having jurisdiction in any of the ancillary causes, on or before the 778 SUITS IN EQUITY. 1st day of January, 18 — , and after that date no further in- tervention shall be permitted in this cause, and the rights of any claimants who shall not, on or before that date, have commenced intervention proceedings to avail themselves of the remedies herein provided for their benefit, shall cease and determine. The receivers shall advertise in daily news- papers published respectively in [name of cities or towns] the date of the intended delivery of the said property to the said company, and shall in said advertisement notify all claimants to present their said claims to the C. & D. Railway Co., and if the same are not settled or adjusted, that then the said claimants shall intervene in the manner aforesaid, and within the time aforesaid, to wit, on or before the ist day of Janu- ary, 18 — . The said advertisement shall be commenced within five days after the entry of this order, and shall be inserted once a week for three successive weeks. Sixth. That nothing in this decree contained is intended to affect, or shall be construed as affecting, the status of any pending or undetermined litigation in which said receivers appear as parties. Such litigations may continue to deter- mination in the name of the receivers, but for the use of the C. & D. Railway Co., and at its cost and expense, and with the right to that company, should it be so advised, to appear and be substituted in any such litigation. Seventh. That on the day of , on the day fixed for the delivery of said properties by the receivers to the said railway company, the title or right of possession of S. M. and H. C, receivers, as fixed and determined by the certain order made in this cause, dated , and filed , and the said title or right of possession , as fixed and determined by certain subsequent orders made in this cause, extending and continuing the said receivership to the railroads and proper- ties hereinbefore mentioned, shall cease and terminate. Eighth. That the receivers' quarterly accounts and the reports of T. M., Esq., and A. P., Esq., masters, as the same have from time to time been made to this court, which re- RECEIVERS ORIGINAL PROCEEDINGS. 779 ceivers' and master's reports were respectively filed as fol- lows : [here set forth dates of filings as, receivers' report for November and December, 1888, filed March 4, 1888, master's report thereon filed May 28, 1889], are hereby, and each of the said receivers' and master's reports respectively, is in all things confirmed and approved, the parties having ex- pressly waived the right under the rules to file objections thereto. Ninth. That the receivers shall file an additional report containing statement of the receipts and disbursements from the I St day of April, 18 — , to the time of the delivery of the property aforesaid, to wit, July i, 18 — , and simultaneously with its submission to the master mail a duplicate of such report to the defendant, the C. & D. Railway Co., to its New York office, and thereupon, without further order, said report shall -stand referred to the master heretofore appointed in this cause, and he shall forthwith proceed to pass upon the same and report to this court. Within five days after such report of the master has been filed, objections, if any there- to, shall be filed, and, if no objections are filed thereto, the same may be submitted to the court without further notice ; and if and when approved, the said receivers shall be finally discharged as to an accounting with the C. & D. Railway Co., and the other companies hereinbefore mention- ed, and their bonds cancelled and discharged. Tenth. That the C. & D. Railway Co., and the said re- ceivers, S. M. and H. C, may apply at the foot of this de- cree for such other and further relief as may be just. J.S., Circuit Judge. We hereby consent to the entry of the foregoing decree. The A. B. Co., By X. & X., Solicitors. M. P. Railway Co., By Z. & Z., Solicitors. 780 SUITS IN EQUITY. No. 631. Assignment by Railway Receivers of Choses in Action, etc., on the Surrender of the Property. Know all men by these presents : Whereas, we, S. M. and H. C, receivers of the C. & D. Railway, duly appointed and acting as such under certain orders and decrees made in a certain suit in equity pending in the circuit court of the United States for the district of , wherein the A. B. Company is plaintiff and the C. & D. Railway Company and others are defendants, and also under certain orders and decrees made in certain ancillary causes between the same parties pending in the circuit court of the United States for \name the courts^ have been ordered and directed by the certain order entered in said main cause in the circuit court of the United States for the district of , on the day of , to deliver at the hour of noon on the ist day of July 18 — , to the C. & D. Railway Company all the railroads and other property of the C. & D. Railway Com- pany, the D. & W. Railway Company, \etc.^ naming all the companies,] wheresoever situated, whereof they are in pos- session as receivers under and pursuant to the orders of the courts hereinbefore referred to ; and. Whereas, by said order of the day of , said receiv- ers were directed simultaneously with the delivery of the aforesaid railroads and property, to assign and transfer to the C. & D. Railway Company all of the assets, uncollected ac- counts, and choses in action of the said C. & D. Railway Company, or of either of the before-mentioned railroad com- panies, remaining in their hands and which have accrued to them as such receivers from the possession and operation of said lines of railway, or either of them; and Whereas, orders have been entered in each of said ancillary suits between the same parties in the above-named circuit courts of the United States for, [naming them,] expressly RECEIVERS ORIGINAL PROCEEDINGS. 7^^ approving and confirming said order of said circuit court of the United States for the district of , of date, . Now, therefore, in consideration of the premises, and pur- suant to the orders and directions of the courts made as here- inabove stated, we, the said S. M. and H. C, receivers of the C. & D. Railway (duly appointed and acting as such by virtue of the orders and decrees in the aforesaid suits in the above- mentioned courts), do hereby assign, transfer, and set over to the C. & D. Railway Company all and singular the assets, uncollected accounts, and choses in action of the said C. & D. Railway Company, the D. & W. Railway Company, etc. \nammg them^ remaining in our hands at the date of the delivery of said railways and properties by us to the said C. & D. Railway Company as aforesaid, and which have accrued to us as receivers from the operation and possession of said lines of railway or either of them. This assignment to become effective at the hour of noon on the ist day of July, i8 — , simultaneously with the delivery of the possession of the railroads and properties of the fore- going companies to the C. & D. Company as required by the orders and decrees of the courts hereinabove referred to. In witness whereof we have hereunto signed our names and affixed our seals this day of , i8 — . [^Acknowledgment, see No. 632.] S. M. iSeai:\ H. C. iSeal.'\ No. 632o Acknowledgment to Assignment by Receiver. The U.nited States of America, State of , County of , ss. Be it remembered, that on this day of , before me, E. G., a notary public, duly commissioned, qualified, and acting in and for the county and state aforesaid, came S. M., one of the receivers of the C. & D. Railway, and who is per- 7^2 SUITS IN EQUITY. sonally known to me to be the identical person described in, and who executed and signed, the foregoing instrument of writing, and duly acknowledged that he executed the same as his free act and deed for the purposes and consideration therein expressed. In witness whereof, I have hereunto set my hand [^(?i2/.] and affixed my official seal the day and year last above written. My commission expires on the day of , 1893. E. G., Notary Public. (Similar acknowledgment for other receiver.) "In Equity. No. 633. Deed of Receivers of a Railroad Company, Trustee and the Purchasers to the Railroad Property (i). In the Circuit Court of the United States for the Western District of Tennessee. The Farmers' Loan & Trust Company vs. The Memphis & Charleston Railroad Company, The Central Trust Com- pany of New York and Samuel Thomas. An indenture, made the third day of March, 1898, by and between Henry Fink and Charles M. McGhee, receivers of The Memphis & Charleston Railroad Company, appointed in the suits in equity hereinafter mentioned (hereinafter called the receivers), parties of the first part; and The Memphis & Charleston Railroad Company, a. corpo- ration created by and existing under the laws of the states of Tennessee, Alabama and Mississippi (hereinafter called the railroad company) , party of the second part ; and The Farmers' Loan & Trust Company, a corporation cre- ated by and existing under the laws of the state of New RECEIVERS ORIGINAL PROCEEDINGS. 783 York (hereinafter called the trustee), party of the third part; and Adrian Iselin, Jr., and Melville E. Ingalls, Jr., both of the city of New York and state of New York, and John W. Fewell, of the city of Meridian and state of Mississippi (hereinafter called the purchasers), parties of the fourth part; and Southern Railway Company, a corporation created by and existing under the laws of the state of Virginia, party of the fifth part; and Memphis & Charleston Railway Company, a corporation created by and existing under the laws of the state of Mis- sissippi, party of the sixth part; Witnesseth : Whereas, on or about the second day of August, 1895, The Farmers' Loan & Trust Company, trustee, as complain- ant, filed its bill of complaint, in equity, in the Circuit Court of the United States of America for the Western District of Tennessee, Western Division, against The Memphis & Charleston Railroad Company, a corporation created by or existing under the laws of the states of Tennessee, Alabama and Mississippi, and others, as defendants, for a foreclosure of the consolidated first mortgage of said The Memphis & Charleston Railroad Company, dated the 20th day of August, 1877, and upon or about that day duly executed, acknowl- edged and delivered by said Railroad Company to said The Farmers' Loan & Trust Company, as trustee, and for a sale of the mortgaged property and premises, being the railroads, property, privileges and franchis.. of said The Memphis & Charleston Railroad Company, as more specifically described in said consolidated first mortgage ; and Whereas, in said cause Henry Fink and Charles M. Mc- Ghee were duly appointed receivers of all the property of every name and nature of the said railroad company, and the said receivers, parties of the first part, have continued, and now are, receivers of such railroad property; and 784 SUITS IN EQUITY. Whereas, such proceedings were had in the said cause that on the 2d day of March, 1897, a decree of foreclosure and sale was entered therein by the Circuit Court of the United States for the Western District of Tennessee, Western Di- vision, at Memphis, Tennessee, and upon November 24, 1897, a decree supplemental thereto was also entered by said court pursuant to the mandate of the Circuit Court of Appeals for the Sixth Circuit; and Whereas, similar decrees foreclosing such mortgage, an- cillary to said decree of said Circuit Court of the United States for the Western District of Tennessee, Western Divi- sion, made on March 2, 1897, were subsequently entered, on or about the fifth day of April, 1897, in similar suits brought by The Farmers' Loan & Trust Company, complainant, against the said The Memphis & Charleston Railroad Com- pany, the Central Trust Company of New York and Samuel Thomas, as defendants, in the Circuit • Court of the United States for the several districts hereinafter mentioned — that is to say, the Eastern District of Tennessee, Southern Divi- sion; the Northern District of Alabama, Northern Division, and the Northern District of Mississippi, Eastern Division; and Whereas, in and by the said decrees Louis B. McFarland was appointed Special Master to execute the said foreclosure decrees and to make the sale of property therein provided for and directed; and Whereas, in pursuance of such appointment the said Spe- cial Master afterwards, to wit, on the 26th day of February, 1898, after due advertisement and notice of sale, as pre- scribed in the said decrees, and in said supplemental decree, at public auction at the railroad station upon the rail of The Memphis & Charleston Railroad Company, in the city of Memphis and state of Tennessee, on the day and at the hour fixed by said Special Master, in his advertisement of sale, and in the manner specified and directed in the said decrees and the said supplemental decree, did sell all and singular the RECEIVERS ORIGINAL PROCEEDINGS. 785 railroad, equipment, property and premises, rights, assets, privileges and franchises, which the said Special Master was directed by the said decrees and supplemental decree to sell, upon the terms and conditions in said decrees* and said sup- plemental decree set forth, to which decrees reference is here- by specially and expressly made; and Whereas, at such sale the said parties of the fourth part became the purchasers of all such railroad and property and franchises, ofifered and sold as a single parcel, the said parties having made such purchase as joint tenants and not "tenants in common, for the benefit of the Southern Railway Com- pany, a corporation organized and existing under the laws of the state of Virginia, as to all of said railroad, real estate and franchises, within the states of Tennessee and Alabama, and as to all of the equipment, chattels and choses in action of said The Memphis & Charleston Railroad Company, wher- ever situate; and for the benefit of a corporation to be called The Memphis & Charleston Railway Company, and to be or- ganized under the laws of the state of Mississippi, as to all of the railroad, real estate and franchises, within the state of Mississippi, as to all of the railroad, real estate and franchises, within the state of Mississippi, as more fully set forth in the petition of said purchasers filed in said cause for the confirma- tion of said sale; and Whereas, the said parties of the fourth part did there- after duly pay and satisfy their said bid ; and Whereas, the said Special Master did duly make his re- port of said sale to said Circuit Courts of the United States for the Western District of Tennessee, Western Division; the Eastern District of Tennessee, Southern Division; the Northern District of Alabama, Northern Division, and the Northern District of Mississippi, Eastern Division, and the said sale was thereafter, by decrees, entered of record, duly approved and confirmed; and Whereas, an order was thereafter made authorizing and directing the said Louis B. McFarland, as Special Master, 786 SUITS IN EQUITY. upon the terms and conditions set out in the decree of con- firmation of the said Circuit Court of the United States for the Western District of Tennessee, Western Division, to ex- ecute, acknowledge and deliver a deed of conveyance to the said Southern Railway Company, conveying to it, its success- ors or assigns, forever, all and singular the said railroad, real estate and franchises, within the states of Tennessee and Al- abama, and also all estate, equipment, personal property and choses in action, wheresoever situate; including also all in- come, proceeds of income, bills and accounts receivable, cash and other property, received by the said receivers, and all causes of action and judgments, by them acquired or obtain- ed, in the management or operation of the said mortgaged premises embraced !n the conveyance thereof, or pertaining thereto; and also any and all property of the said railroad company, appurtenant to the premises and required for use in connection with or for the purposes of said railroad, or for the business of said railroad company, and vested in or standing in the name of the said receivers, or to which the said receivers in any manner had acquired title; and a deed of conveyance to the purchasers, conveying to them, or to their successors or assigns, forever, subject to the same con- ditions, all and singular the railroad, real estate and fran- chises, within the state of Mississippi, so as aforesaid sold under the said decree and said supplemental decree, free from any and all equity of redemption of the said The Memphis & Charleston Railroad Company, or any one claiming by, under or through it, except certain liens specified in said de- cree; and Whereas, the said Special Master thereafter did make, ex- ecute and deliver his conveyance to the party of the fifth part, and to the parties of the fourth part, respectively, which said deed or conveyance bears date the 26th day of February, 1898, and to which reference hereby is made; and Whereas, The Memphis & Charleston Railway Company, party of the sixth part hereto, has been duly organized as a RECEIVERS ORIGINAL PROCEEDINGS. 787 corporation under the laws of the state of Mississippi; and- Whereas, the said parties of the fourth part desire to vest in the party of the fifth part, and in the party of the sixth part, severally and respectively, the full and complete title to the several properties and franchises by them so purchased for the benefit of the said parties of the fifth part and sixth part, respectively; and Whereas, the decree of confirmation of said United States Circuit Court for the Western District of Tennessee, West- ern Division, further provided that by way of further assur- ance and confirmation of title to the said Southern Railway Company, and to the said Memphis & Charleston Railway Company, severally and respectively, the receivers of said court in said cause, and also the said The Memphis & Charles- ton Railroad Company, by its proper officers, and under its corporate seal, and The Farmers' Loan & Trust Company, trustee, should, under the direction of the Special Master, and upon request of the said Southern Railway Company, and of the said purchasers, or their successor, the said Memphis & Charleston Railway Company, severally and respectively, sign, seal, execute, acknowledge and deliver to the said two corporations, parties hereto of the fifth part and sixth part, severally and respectively, all proper deeds of conveyance, transfer, release and further assurance of all and singular the mortgaged property and premises, and every part and parcel thereof, of every kind and description, and wherever situate, so as aforesaid sold under the said decree and said supplemental decree of the said court, and embraced in the said deed of the Special Master so as fully and completely to transfer to, and to vest in, the Southern Railway Company, party hereto of the fifth part, and in the Memphis & Charles- ton Railway Company, party hereto of the sixth part, sev- erally and respectively, their successors and assigns, the full, legal and equitable title to all such railroad property, rights, assets and franchises, sold or intended to be sold under the said decree and said supplemental decree of said court; and 788 SUITS IN EQUITY. Whereas, the said purchasers, parties hereto of the fourth part, and the said party hereto of the fifth part, and the said party hereto of the sixth part, have respectively complied with and fulfilled all the terms and conditions of the said decrees ; and Whereas, the said parties hereto of the fifth part and sixth part, severally and respectively, are now entitled tO' a convey- ance of the property so purchased for and confirmed to them : Now, therefore, this indenture witnesseth: That the said receivers, parties of the first part, the said railroad company, party of the second part, the said trustee, party of the third part, and the said purchasers, parties of the fourth part, in consideration of the sum of one dollar to each of them in hand paid by the parties of the fifth part and sixth part, sever- ally and respectively, and according to their several and re- spective interests and in pursuance of the directions of the said decree. Have granted, bargained, transferred, sold and conveyed, and by these presents do hereby grant, bargain, transfer, sell and convey. First. Unto said Southern Railway Company, and its successors and assigns forever: All of the railroad, real estate and franchises, hereinafter described or referred to, within the states of Tennessee and Alabama, and as to all of the equipment, chattels and choses in action of said The Memphis & Charleston Railroad Com- pany, wherever situate; Together with all the corporate estate, equity of redemp- tion, rights, privileges, immunities and franchises of said The Memphis & Charleston Railroad Company, and all the tolls, fares, freights, rents, income, issues and profits of the said railroads, and all interest and claims and demands of every nature and description, and all the reversion and re- versions, remainder and remainders thereof, including all the said mortgaged premises and property in said decrees direct- ed to be sold, at any time owned or acquired by said The RECEIVERS ORIGINAL PROCEEDINGS. 789 Memphis & Charleston Railroad Company, and including also all income, proceeds of income, bills and accounts, receivable, cash and other property received by the receivers, and all causes of action, and judgments, by them acquired or ob- tained, in the management or operation of the mortgaged premises embraced in this conveyance or pertaining thereto, and also any and all property of the said railroad company appurtenant to the premises and required for use in connection with or for the purposes of said railroad, or the business of said railroad company, and vested in or standing in the name of the said receivers, or to which the said receivers in any manner -have acquired title; excepting, however, all such leases and contracts sold with the said property as the parties of the fifth and sixth parts, severally and respectively, shall within ninety days after the delivery of this deed elect not to assume and adopt ; and Second. Unto Memphis & Charleston Railway Company, and its successors and assigns forever: All of the railroad, real estate and franchises within the state of Mississippi ; A more full and particular description of the property in- tended to be conveyed by this instrument being contained in said decree of the 2d day of March, 1897, and said supple- mental decree of November 24, 1897, and in said Special Master's deed on the 26th day of February, 1898, to which reference hereby is made: To have and to hold, all and singular, the above mentioned railroads, premises, rights, privileges, interests, franchises, lands, tenements, hereditaments, appurtenances and property of every description, whether real, personal or mixed, herein conveyed or intended to be conveyed, unto the said Southern Railway Company, party of the fifth part, its successors and assigns, as to all of the said railroad, real estate and fran- chises, within the states of Tennessee and Alabama, and as to all the equipment, chattels and choses in action of said The Memphis & Charleston Railroad Company, wherever sit- 790 SUITS IN EQUITY. uate ; and unto the said Memphis & Charleston Railway Com- pany, party of the sixth part, its successors and assigns, as to all of the railroad, real estate and franchises, within the state of Mississippi ; and the said Southern Railway Company and the said Memphis & Charleston Railway Company, their and each of their successors and assigns forever, hereby sev- erally and respectively, are invested with the same (the said Southern Railway Company, as to all said railroad, real estate and franchises, within the states of Tennessee and Alabama, and as to all said equipment, chattels and choses in action, wherever situate; and the said Memphis & Charleston Rail- way Company as to all of the railroad, real estate and fran- chises, within the state of Mississippi), as fully and complete- ly as said The Memphis & Charleston Railroad Company, one of the defendants in said suits in equity, held or enjoyed, or was entitled to hold or to enjoy, or was seized of, or was en- titled to, at the time of the entry of the said decree, or at the time of the commencement of said suits, and as fully and ab- solutely as the said parties of the first, second, third and fourth parts, severally and respectively, may or ought, by vir- tue of said decrees, to bargain, sell, release, assign or convey. It is understood and agreed that nothing herein contained shall be construed as expressly or impliedly subjecting the parties of the first part, or the party of the third part, or the parties of the fourth part, or any of said parties, to any per- sonal covenant or liability whatsoever. In witness whereof, the said parties of the first part have hereunto set their hands and seals as of the third day of March, 1898, and the said The Memphis & Charleston Rail- road Company, party of the second part, has caused its cor- porate seal to be hereunto affixed and attested by its secre- tary and these presents to be signed on its behalf by its presi- dent, as of the third day of March, 1898, and the said The Farmers' Loan & Trust Company, party of the third part, has likewise caused its corporate seal to be hereunto affixed and attested by its secretary, and these presents to be signed RECEIVERS ORIGINAL PROCEEDINGS. 79^ on its behalf by its vice president, as of the third day of March, 1898, and the said parties of the fourth part have hereunto set their hands and seals as of the third day of March, 1898. Signed, sealed and delivered in presence of: C. M. McGhee, ISeal.'] Henry Fink, [Seal.'\ As Receivers of the Memphis & Charleston Railroad Company. As to Henry Fink: Melville E. Ingalls, Jr. Wm. H. Bruder. The Memphis & Charleston Railroad Company, By Samuel Thomas, President. Signed, sealed and delivered in presence of: J. A. Hilton. Wm. H. Bruder. Attest: A. O. Beebe, ISeal ] Secretary. The Farmers' Loan & Trust Company, By E. S. Marston, Vice President. Signed, sealed and delivered in presence of: Melville E. Ingalls, Jr. Wm. H. Bruder. Attest: Sam Sloan, Jr., [Seal.l Secretary. Signed, sealed and delivered in presence of: Adrian Iselin, Jr., [Seal.'] Melville E. Ingalls, Jr., [Seal.} Jno. W. Fewell, [Seal.'] As to Adrian Iselin, Jr. : Melville E. Ingalls, Jr. Wm. H. Bruder. As to Melville E Ingalls, Jr. Hall Park McCullough. Purchasers. 792 SUITS IN EQUITY. Wm. H Bruder. As to John W. Fewell: R. A. Feweli: A. S. Bozeman. State of New York, County of New York, ss. I, Wm. H. Bruder, a notary public in and for the county of New York, in the state of New York, do hereby certify that on this 22d day of March, 1898,' in the year 1898, Henry Fink, whose name is signed to the foregoing- and hereto an- nexed deed, bearing date the third day of March, 1898, as one of the receivers -of the Memphis & Charleston Railroad Company, with whom I am personally acquainted, and who is to me known and known to me to be one of the above-named grantors and bargainors, personally appeared before me, at my office, in said county, and he, then and there being in- formed of the contents of the said deed, on this day acknowl- edged the due execution of the said deed; and further ac- knowledged that he voluntarily executed, signed, sealed and delivered the said deed on the 22d day of March, 1898, as his free act and deed for the uses and purposes therein men- tioned, and for the purposes therein contained. And I hereby certify that I am a duly appointed notary public in and for the said county and state, and my commis- sion commences on the 31st day of March, 1897, and that my commission as such notary public expires with the 30th day of March, 1899. In witness whereof I have hereunto set my hand and affixed my official seal as notary public for the county of New York, and state of New York, this 22d day of March, 1898. [Seal.^ Wm. H. Bruder, Notary Public, County of New York, State of New York. (l) The foregoing deed of the receivers of a railroad company, trustee and the purchasers at a judicial sale is copied from the record in the case of The Farmers' Loan & Trust Co. vs. The Memphis & Oiarleston RECEIVERS — ORIGINAL PROCEEDINGS. 793 R. R. Co., pending in the Circuit Court of the United States for the Western District of Tennessee. The Circuit Court of Appeals refused to disturb these proceedings in Rothschild vs. Memphis & Charleston R. Co., 113 Fed. Rep. 476. 794 SUITS IN EQUITY. ANCILLARY PROCEEDINGS* No. 634. Ancillary Bill. In re Receivers for a Manufacturing Com- pany where Receivers wrere Appointed by a State Court before a Federal Court took Jurisdiction. [Caption^] To the honorable Judges of the Circuit Court for the district of , sitting in equity : A. B., a citizen of the state of , and residing in the township of , in said state of , on behalf of himself and all other creditors and stockholders of the C. D. Com- pany, defendant herein, and who may hereafter become parties to this suit and contribute to the expenses thereof, brings this bill of complaint against the C. D. Company, a corporation organized and existing under the laws of the state of New Jersey and citizen of the said state of New Jersey, and respectfully shows to the court as follows : First. That your orator, A. B., is and was at the date of the commencement of this suit a citizen of the state of , residing in the township of , and was, at said date, and still is, a shareholder of the C. D. Company, and that the par and also the market value of the capital stock so held by the said party as aforesaid is and was at the date of the com- mencement of this suit and at all times of greater value than thousand dollars. That the C. D. Company is a corporation duly incorpo- rated and existing under the laws of the state of New Jersey, and is and at all times has been a citizen of said state of New Jersey, located and carrying on business in said state. *As to jurisdiction, see Foster's Fed. Prac, Seo. 21, and Beach's Modern Eq. Prac, Sec. 718, and note. RECEIVERS ANCILLARY PROCEEDINGS. 795 That said company was duly organized under an act of the ■ legislature of the said state of New Jersey, entitled, "An act concerning corporations," dated April 7, 1875, and the several supplements thereof, and by a certificate of organization bear- ing date of the day of , 1887, and recorded on the day of , 1887, in the office of the clerk of the county of , and afterwards on the same day filed with the secre- tary of state at Trenton, in said state, and that the principal office of the said corporation is located within the county of , in said state. That the authorized capital of said corpo- ration as fixed by the said certificate is dollars, divided into hundred shares of the par value of hundred dollars each, and that the said stock was thereafter increased to the sum of million dollars, of which million dollars is preferred stock and million dollars common stock, all of which is now outstanding. Second. That the objects for which the said corporation was formed are to manufacture and sell [cordage and binder twine\ and similar commodities, and for the carrying on of such similar business as more fully appears by reference to the certificate of organization, a true copy of which is an- nexed to this bill and marked " Schedule A," and made a part of this bill of complaint. That soon after , the organization of said corporation it entered upon the manufacture and sale of [cordage and binder twine\ and such other business as is authorized by said certificate of organization, and has since such time prosecuted the same in the several states of New Jersey, New York, and Ohio, in all of which states it is now operating [cordage and binder twine'] mills. That the said corporation has real or personal property in all of the said states, and is now largely engaged in active manufacturing in each of the said states, employing in all a number of persons amounting to or thereabouts, and operating directly or indirectly a number of cordage mills. Third. On information and belief, on the day of , 1893, the payment of a debt of dollars, due on 796 SUITS IN EQUITY. demand, was demanded of the said C. D. Company, and re- mained unpaid and default existed in tlie payment thereof, the said corporation not having sufficient funds to pay the same, and other debts aggregating dollars or thereabouts on the day of , 1893, will become due, which said corporation is unable to pay. That the further debts will mature within a few days to the amount of several hundred thousand dollars, and that during the entire month of debts will mature, aggregating in all dollars. That in the months of June, July, August, and September, other large indebtedness on commercial paper and otherwise will mature, exceeding in all dollars. That the corporation is without funds to pay the debts maturing at the present time, and will make default in pay- ment of such other debts accruing within a few days, and that in the present situation of aflFairs it is not possible to pay the same. , That the assets of the corporation, which are valuable, are not available, either for the payment of its debts or for the raising of money to pay the same. That the corporation is unable to meet its obligations as they mature, and has no prospect at the present time of meeting the same or of resuming its usual business, and that the corporation is insolvent . Fourth. Your orator further says that the assets of the corporation consist of \cordage\ mills owned or leased in the several states hereinabove mentioned, together with the raw stock in process of manufacture, and manufactured stock, and book accounts and bills receivable the greater part of all of which are scattered through various states, and the same are likely to be attached by creditors without the state of New Jersej' on the ground that the corporation is a for- eign corporation, and that unless a receiver is appointed for the equal protection and benefit of all creditors, attachments will be issued and preferences obtained by some to the in- jury of the general creditors of the company, and, moreover, RECEIVERS ANCILLARY PROCEEDINGS. 797 ■certain obligations mature in connection with the vari- ous mills of the company, which can not now be paid, which properties are necessary to the operations of the com- pany, and which properties otherwise would be lost. And your orator further alleges on information and belief, that on the day of , in the year 1893, a certain suit was commenced in the court of chancery in the state of New Jersey, a court of record and having jurisdiction of the par- ties and the subject-matter, and at the domicile of the cor- poration; that in said suit J. W. was plaintiff, and the C. D. •Company, defendant, and in and by the bill of complaint in said suit, it was averred that the said corporation was insol- vent, and it was prayed, among other things, that a receiver might be appointed according to the statutes of the state of New Jersey in such case made and provided, and that the ..said corporation shall be declared insolvent, and that said re- ceiver so to be appointed should thereupon take possession of the goods, property and chattels of the said C. D. Company, and proceed to realize and dispose of the same, and that said corporation and its ofiBcers should be restrained from col- lecting or receiving such debts or from assigning or transfer- ring the property, to all and singular the allegations in which bill, references are hereby had, as if the same, and each of the allegations were incorporated at length herein. That thereupon the said bill was duly filed as aforesaid, and application in due form to the chancellor of the state of New Jersey, having jurisdiction for the appointment of a receiver or receivers, and that the said case came on, and was duly heard by his honor, the chancellor, pursuant to the statutes of the state of New Jersey, the said corporation be- ing present in court, and requesting such appointment, and such proceedings were had therein that on the ^ day of , 1893, it was duly adjudged, found, decreed, and ordered by the said court of chancery of the state of New Jersey, that the said company had become insolvent, and that an injunction be issued to restrain said company and 798 SUITS IN EQUITY. its officers from exercising any privileges and franchises and from taking or dealing with the assets of the said company, or from transferring the same, except to the receivers here- inafter named, and that S. M., of Jersey City, in the state of New Jersey and H. C, of the city, county, and state of New York, were in due form of law appointed receivers of the said CD. Company, with full power and authority to collect, receive, or to take unto their possession, all and singular the property, real and personal, belonging to said company, to dispose of the same, and to deal therewith as in such order is specifically provided, and it was further provided therein that the said receivers should give a bond to the said chan- cellor for the faithful performance of their several duties, and for the obedience of such orders as he, from time to time, may make, in the sum of dollars ,duly approved as in such order specified by a special master of the said court. That thereupon the said S. M. and H. C, duly thereafter took the oath of office, as such receivers, as is prescribed by the statute, and each duly thereafter executed his bond as prescribed in such order, in the said sum therein named, which bond was thereafter duly approved in the form required by such order and duly filed as required by law, and that the said receivers entered upon the performance of their duty and are now in the possession of the assets and property of the said C. D. Company, and the said order of the court of chancery is now in full force and effect. A copy of all the proceedings in the said suit hereinabove mentioned is at- tached hereto, marked "C," to which your orators refer, as if herein specifically stated at length. Your orator further alleges that from the nature of the business and the necessity of intelligent mutual co-operation in the several states, it is highly desirable that the same re- ceiver, if possible, should act in each jurisdiction. Fifth. Your orator further alleges that on the day of , 1893, he commenced in the circuit court of the RECEIVERS ANCILLARY PROCEEDINGS- 799 United States, for the district of , a court of record, and having jurisdiction of the parties and the subject-mat- ter, a suit wherein the C. D. Company was defendant, and wherein substantially the same allegations were made as were made in the New Jersey suit, hereinbefore referred to, and wherein it was stated that such suit had been begun in New Jersey, and S. M. and H. C. had been appointed therein as receivers, and prayed that the same receivers might be appointed in said suit in the circuit court of the United States for the district of . That, thereafter, on the said day of , an order was made by the Hon. J. S., circuit judge, appointing said S. M. and H. C. receivers of said C. D. Company. A copy of said order and the bill of complaint in said suit, and of the affidavits and exhibits referred to in said order, which exhibits include the bill of complaint in the suit in New Jersey, and an order appointing receivers in said suit, and of the affidavit used therein, is attached hereto marked "A." Sixth. Your orator further shows that on the day of , 1894, he commenced a suit in the circuit court of the United States for the district of , against the C. D. Company, making substantially the same allegations in said bill as were made by him in the bill filed in the suit in the circuit court for the district of , and supporting said allegations by substantially the same affidavits, and upon said bill and affidavits the Hon. H. Iv., circuit judge, made an order in all respects similar to the order made by the Hon. J. S., above referred to, and in said order appointed the said S. M. and H. C. receivers. Your orator further alleges that from the nature of the business of said C. D. Company, and from the fact that the said S. M. and H. C. have been appointed receivers in three courts, and the necessity of intelligent mutual co-operation in the various states wherein assets of said company are sit- uated, it is highly desirable that the same receivers, if pos- sible, should act in all the jurisdictions. 800 SUITS IN EQUITY. Seventh. Inasmuch, therefore, as your orator has no ade- quate remedy at law, and can only have relief in equity, he files this bill of complaint on behalf of himself and all others similarly situated, and prays as follows: I St. That due process of law be issued against the de- fendant, the C. D. Company, and that it be summoned to appear in this court, and answer this bill of complaint, but without oath, all answers under oath being expressly waived, and to stand and abide by such orders and decrees as the court from time to time may adjudge. and. That the court will administer the assets of the de- fendant. 3rd. That the court will forthwith confirm the appoint- ments heretofore made of S. M. and H. C. as receivers of all and singular the property of the C. D. Company, and will appoint receivers of the property and assets of the defendant, the C. D. Company, real and personal, together with all the equipment, property, material, supplies, and other assets of every description, wherever situated, together with all lease- holds, rights, and contracts, with authority to maintain and carry on the business under the direction of the court, and that the said C. D. Company, its officers, agents, and em- ployees, be forthwith required and directed to deliver up to such receivers so appointed all and singular each and every part of the said property wherever situated, and that the officers, directors, managers, and agents of the said C. D. Company, and each of them, be enjoined from interfering in any way with the possession and control of the said receiv- ers, and that they be directed forthwith to execute proper transfer and assignments to such receivers so appointed, and all and singular such assets, real and personal, wherever situ- ated. 4th. That each and every of the creditors of said corpor- ation be restrained and enjoined from interfering with the said property and assets of the company. RECEIVERS ANCILLARY PROCEEDINGS. 80I 5th. That the plaintifiF may have such other and furthet relief as the court may deem proper and necessary. R. X., Solicitor for Plaintiff. S. X., of Counsel. [Verification, see No. 279. J No. 635. Ancillary Bill for Foreclosure of Railway. [Caption as in No. 207.J Your orator, the A. B. Trust Company, a corporation cre- ated by and existing under the laws of the state of , and a citizen and resident of said state, shows unto your honors that it has already filed in the circuit court of the United States for the district of , the court having jurisdic- tion of the C. St D. Railway Company, a bill of complaint against said C. & D. Railway Company, a corporation having its principal office in the state of , and a citizen and resident of said state of , and against the M. P. Railway Company, a corporation existing under the laws of the state of- , and citizen of said state of , seeking for the fore- closure of a certain indenture of mortgage or deed of trust, dated , known as the general consolidated mortgage of the said C. & D. Railway Company. That a portion of the line of railway and property owned by the said C. & D. Rail- way Company, and subject to the lien of said general con- solidated mortgage, is in this district and within the jurisdic- tion of this court. Your orator respectfully refers to said bill of complaint for a more particular statement of the contents thereof, and for the terms and conditions of the said general consolidated mortgage, and your orator files herewith a true copy of said 802 SUITS IN EQUITY. bill of complaint, and prays that your honors will take the same as a part of this ancillary bill ; your orator further shows .that all the stateinents contained in said bill are true, as it is informed and verily believes, and it repeats the same herein. And your orator makes the same persons defendants in this case that are named in said bill filed as aforesaid, and prays process against said defendants as in said bill they have already prayed. And your orator prays that your honors will make -such orders and decrees preliminary and final as are prayed for in said bill by your orator in the circuit court of the United States for the district of , and that your honors will also make all such other and necessary orders, judgments, and decrees as may be required in aid of said bill, and that your honors will take ancillary jurisdiction with the said circuit court of the United States for the district of , and will give your orator all the relief which may be necessary to accomplish the purposes of filing said bill. And your orator prays in all respects as in said bill set forth, and prays such other and further relief as the nature of the case may require and to your honors seem meet. X. & X., R. X., Solicitors for Plaintiffs in said Bill. F.Iv., of Counsel. No. 636. Supplemental Ancillary Bill for Foreclosure of Railway. \Caption.^ Now comes the A. B. Trust Company, plaintiflFin the above- entitled and numbered cause, and brings, with the leave of the court first had and obtained, this, its supplementary an- cillary bill to the original ancillary bill filed by it in this cause on the day of , and making all the averments and showing unto your honors the same facts which are set RECEIVERS ANCILLARY PROCEEDINGS. 803 forth in said original ancillary bill, further shows and alleges : That since the filing of said original ancillary bill the Hon. J. S., judge of the circuit court of the United States for the district of , in the circuit, to wit, on the day of , made his certain decree in the case of the A. B. Trust Company, Trustee, Plaintiff, vs. C. & D. Rail- way Company and M. P. Company, Defendants, referred to and set forth in said original ancillary bill filed herein, ordering, adjudging, and decreeing that S. M. and H. C. be appointed receivers of the property of the C. & D. Railway Company, covered by the mortgages made by the said defendant, which are sought to be foreclosed in the said original bill of the A. B. Trust Company, plaintiff, with power, among other things, to take possession of all the said mortgaged property, and to operate, and cause to be operated, the said railroad mortgaged as aforesaid, and to preserve and protect all of the said mort- gaged property, acting in all things under the order of the said honorable circuit court of the United States for the district of , or of such other courts as may entertain jurisdiction of parts of the said mortgaged property as ancil- lary to the jurisdiction of said circuit court of ; and with leave to the plaintiff and defendants, and each of them, to apply to any other United States circuit court for such order or orders in aid of the primary jurisdiction vested in said circuit court of in said cause as may have ancillary jurisdiction therein. A certified copy of which order is attached hereto, and made a part hereof; and plaintiff fur- ther shows and alleges that said S. M. and H. C, named as receivers aforesaid, have qualified as such, in the manner re- quired by the terms of said decree of date, , and on the day of , took possession of the said property, and are now operating and causing to be operated the said rail- roads, mortgaged as aforesaid, including such property and railroads as are situated within the state of . The plaintiff now renewing its prayer made in said ancil- lary bill filed on the day of , prays that your honors 804 SUITS IN EQUITY. will make such orders and decrees preliminary and final as are prayed for in said bill by plaintiff in the circuit court of the United States for the district of , and that your honors will also make such other and necessary orders, judg- ments, and decrees as may be required in aid of said bill,, and that your honors will take ancillary jurisdiction with the said circuit court of the United States for the dis- trict of , and will give plaintiff all the relief which may be necessary to accomplish the purposes of filing said bill. And plaintiff prays in all respects as in said bill set forth, and prays such other and further relief as the nature of the case may require, and to your honors seem meet. X. & X., Solicitors for Plaintiff in said Bill. No. 637. Decree Taking Ancillary Jurisdiction (i). \_Caption.'\ On this day of , came on to be heard the original and supplemental ancillary bill filed by plaintiff in this cause, and the court having considered the same, and it appearing to the court that the A. B. Trust Company, trustee, plaintiff herein, has already filed in the circuit court of the United States for the district of , the court having jurisdic- tion of the C. & D. Railway Company, a corporation having its principal -office in the state of , a bill of complaint against said C. & D. Railway Company and against the M. P. Railway Company, a corporation existing under the laws of the state of , and of said state of , asking for the foreclosure of a certain indenture of mortgage, dated , known as the general consolidated mortgage of the said C. & D. Railway Company, a true copy of which bill of complaint is now on file in this cause. And it further appearing that in said cause now pending in the said circuit court of the RECEIVERS ANCILLARY PROCEEDINGS. 805 United States for the district of , the Hon. J. S., United States circuit judge for the circuit, including said district of , on the day of , made his order and decree sustaining plaintiff's application for a receiver, and afterwards, to wit, on the day of , made his further order and decree, naming and appointing S. M. and H. C. receivers of the property of the C. & D. Rail- way Company, covered by the mortgages made by the said company which are sought to be foreclosed in the said origi- nal bill of the A. B. Trust Company, plaintiff, with certain powers and under certain instructions, as fully appears in said order, a certified copy of which is attached to the plain- tiff's supplemental ancillary bill filed herein ; and It further appearing that a portion of the line of railway and property owned by the said C. & D. Railway Company, and subject to the lien of said general consolidated mortgage, is in this district and within the jurisdiction of this court, and that by the terms of said order of date , said plaintiff was authorized to apply to any other United States circuit court of competent jurisdiction for such order or orders in aid of the primary jurisdiction vested in said United States circuit court for the district of as may take ancil- lary jurisdiction of said cause ; and It further appearing that the said S. M. and H. C. have ■qualified as such receivers by taking and subscribing the oath of office and executing and filing bond in the manner and according to the terms of the ninth paragraph of said order and decree: Now, the court being fully advised, and being moved thereto by the solicitors of the plaintiff. It is ordered, adjudged, and decreed that this court take ancillary jurisdiction with the circuit court of the United States for the district of in said cause now pending in said court, wherein the said A. B. Trust Company, trustee, is plaintiff, and the said C. & D. Railway Company and said M. P. Railway Company are defendants. 8o6 SUITS IN EQUITY. It is further ordered, adjudged, and decreed that the said order made by the said circuit court of the United States for the district of , of date , sustaining the appli- cation of plaintiff for a receiver, and also the said order and decree of said court made on the of , naming and appointing S. M. and H. C. receivers of the property of the C. & D. Railway Company, covered by the mortgages made by the said company, which are sought to be fore- closed in the original bill of the A. B. Trust Company, with certain powers and under certain instructions, be and the same are hereby ratified, approved, and confirmed, and the said S. M. and H. C. are hereby vested with the same powers, rights, and privileges as are conferred by said order of said circuit court of the United States for the district of , of date , over that portion of the line of railway and property owned by the said C. & D. Railway Company, sub- ject to the lien of the mortgages made by said company sought to be foreclosed as aforesaid, as is in this district and within the jurisdiction of this court. And the said receivers having already taken and subscribed the oath of office, and executed bond in the manner prescribed by the order and decree of said circuit court of the United States for the district of , of date , they are hereby authorized to take possession of said property and to act as such receivers with- out taking further oath of office or executing further bond. It is further ordered and decreed that the plaintiff cause to be filed in this court certified copies of all orders of a gen- eral nature in any way affecting the said property situated within the jurisdiction of this court made by the said circuit court of the United States for the district of in said primary cause pending in said court, for the information of the court and all persons who may be interested in said cause. It is further ordered that the clerk of this court enter on the minutes of the court the copy of the said order of the said circuit court of the United States for the district of , of date , immediately following the entry of this order and decree. A. P., Circuit Judge. RECEIVERS' — ANCILLARY PROCEEDINGS. 807 Ancillary receivership may be granted on ex parte application. Piatt vs. Phila. & R. R. Co., 54 Fed. Rep. 569; but see Mercantile Trust Co. vs. Kanawha & O. R. R. Co., 39 Fed. Rep. 337. No. 638. Order Appointing Ancillary Receivers for a Railroad Prop- erty. [Caption.'] Upon reading and filing the verified bill of complaint here- in, and on motion of counsel for complainant, and after ap- pearance by the defendants and due notice to their solicitors •of record, and due deliberation having been had, it is ordered that R. S. and G. P., who have heretofore, in the suit of A. B., against the C. & D. Railroad Company, No. , in equity, been appointed receivers of the property and assets of the C. ■& D Railroad Company, and whose receivership was there- after, by order dated , made in a suit in said court, where- in the Central Trust Company of New York was complain- ant, and the C. & D. Railroad Company was defendant. No. , in equity, extended to the last named suit, be, and they -are hereby, appointed as such receivers in this cause, of the defendant, the C. & D. Railroad Company, and of the prop- -erty of said defendant as set forth in the order appointing them as made in said cause No. , in equity, filed therein July 25, , to which reference is hereby made, with the ■rights, powers and privileges as in said order set forth, and "that said receivership is hereby extended to this cause. No. 639. Stipulation as to Answers to Ancillary Bill. ICaption.l It is hereby stipulated and agreed on the part of the solici- tors for the defendant, the C. & D. Company, to take notice ■as of this date of the ancillary proceedings herein in E. & F, 8o8 SUITS IN EQUITY. without service of subpoena, and that answers therein will be filed on the January rule day, . Dated New York, December . X. & X., Solicitors for Complainant, Y. & Y., Solicitors for Defendant, E. & F. Ry. Co. No. 640. Appearance of Defendant to Ancillary Bill. The Circuit Court of the United States for the District of . The A. B. Trust Company, Complainant, vs. The C. & D. Railway Company et al.. De- fendants. On this, the rule day in , come .the defendant, the E. & F, Railway Company, one of the defendants in the above entitled cause, and enter this, its appearance, in the ancillary bill filed in said cause in this court. Y. & Y., Of counsel for E. & F. Railway Company, Defendant. No. 641. Answer of Defendant to Ancillary Bill of Foreclosure. The Circuit Court of the United States for the District of . The A. B. Trust Company, Complainant, vs. The C. & D. Railway Company et al., De- fendants. The C. & D. Railway Company, a corporation created by and existing under and by virtue of the laws of the state of RECEIVERS ANCILLARY PROCEEDINGS. 809 , now, and at all times hereafter, saving and reserving unto itself all and all manner of benefit of exception which can or may be had or taken to the many errors, uncertainties and imperfections in the said ancillary bill of complaint, for answer unto the said ancillary bill, or unto so much thereof as this defendant is advised it is material or necessary for it to make answer unto, answering saith : This defendant admits that the complainant, the A. B. Trust Company, is a corporation created by and existing un- der and by virtue of the laws of the state of ; and that it is a citizen and resident of the said state of , and that it has heretofore filed in the Circuit Court of the United States for the District of its bill of complaint against the defendants, the C. & D. Railway Company, and that in and by the said bill of complaint a foreclosure of a certain indenture of mortgage or deed of trust, dated , and known .as the General Consolidated Mortgage of this defend- ant, is sought to be foreclosed. But for the allegations and averments of the said bill, and for the legal sufficiency and effect thereof, this defendant refers to the said bill when the same shall be produced herein, and denies any and all the averments of the said ancillary bill herein in anywise con- trary to or inconsistent therewith. This defendant, further answering, admits, on information and belief, that a portion of its line of railway and property is in this district and within the jurisdiction of this court, but it neither admits nor denies that the said property, or any part thereof, is covered by or subject to the lien of the said General Consolidated Mortgage, and on this behalf it leaves the com- plainant to make such proof as it may be advised. The defendant, further answering, refers to its answer to the said original bill of complaint as heretofore duly filed in the office of the clerk of the Circuit Court of the United States for the District of , and files herewith a true copy and prays that your honors will take the same as a part of its answer herein. And the defendant further shows that the 8lO SUITS IN EQUITY. statements contained in the said answer were, as it is informed and believes, verily true when the same was verified and filed herein as aforesaid, and it repeats all of the said allegations, and says that the same are now true, except so far as they may have been modified by this litigation, and by circum- stances transpiring since said answer was filed. And the de- fendant claims the same benefit from the said answer as afore- said as if it had pleaded to all the several matters therein stated or any of them, or as if it had demurred to the said bill or to this ancillary bill. All of which matter and things the said defendant is ready to aver, maintain and prove as this honorable court shall di- rect, and humbly prays to be hence dismissed, with its reason- able . costs and charges in this behalf most wrongfully sus- tained. The C. & D. Railway Company, By K. E., First Vice President. Attest: \_Seal.'] H. B., Secretary. United States of America, ) f ss. District of . ) K. E., being duly sworn, says: That he is the first vice president of the C. & D. Railway Company, defendant here- in; that he has read the foregoing answer and knows the contents thereof; that the allegations therein contained, as far as they relate to his own acts, are true, and as far as they re- late to the acts of others he believes them to be true. That in regard to all matters and things in the foregoing answer alleged which are not within the personal knowledge of this deponent, the deponent has been fully informed, and he believes that the same are true. K. E. Sworn to before me this day of , A. D. . [Seal.l J. N., U. S. Commissioner for the District of . RECEIVERS ANCILLARY PROCEEDINGS. 8ll No. 642. Order Appointing Special Master in Ancillary Suit. ^Caption.'] It having been represented to the court that claims are arising in against the receivers appointed and confirmed in this case, growing out of the operations of the railway property in , for stock killed, personal injuries, damages for short delivery, etc. ; and it appearing to the court that such claims will constantly arise during the pendency of the re- ceivership in this case, and that such claims should be adjudi- cated, settled and paid without requiring the parties interested to seek relief from the Circuit Court of the United States in , having original jurisdiction : It is therefore ordered by the court that E. M., Esq., be and he is hereby appointed Special Master in Chancery for this cause; and It is further ordered that all claims for damages of every kind that may arise against the receivers, growing out of their operation of the C. & D. in , may be filed and pre- sented to said Special Master, who shall examine and report thereon in due course. That the Special Master is directed to give reasonable pub- lic notice of this order, and is authorized to hold sessions pending examination of claims at such points as he may designate. He shall report his conclusions to the court from time to time, and such reports shall stand confirmed, unless excepted to within thirty days from the filing thereof, upon proper order entered according to the rules in the chancery order book. Dated . 8l2 SUITS IN EQUITY. No. 643. Order to Print the Records in Ancillary Suit. The Circuit Court of the United States for the District pf . The A. B. Company, Trustee, Complainant, vs. The C. & D. Railway Company, and the E. & F. Railway Company et al., De- fendants. Upon motion of the complainant, it appearing to the court that the bill filed in this cause against the defendants is pend- ing in this court and in divers other courts within this circuit and in the state of , seeking the same relief; it further appearing that part of the property of the defendant, the C. & D. Railway Company, and other defendants named in the amended bill filed herein, is within the District of , it is Ordered, adjudged and decreed, that upon complainant's filing in this court a copy' of the orders made by the Circuit Court of the United States for the District of , at , the court having primary jurisdiction in this cause, the. filing thereof shall be a sufficient compliance with the orders made heretofore requiring such orders to be filed pending the re- ceivership and the prosecution of this cause. It is further Ordered, that the clerk of the said court at be or- dered, and he is hereby authorized and directed, to cause to be printed the records in the above entitled cause, including the general orders made herein from time to time, printing the same by successive paging, and in as nearly chronological order as is convenient, and that in printing the same he do not duplicate the orders made by the Circuit Court of the United States for the District of , which have, by orders of said court, been printed and filed in this court, but that when neces- sary he refer to them by reference to case No. , in equity, RECEIVERS ANCILLARY PROCEEDINGS. 813 pending at , giving the page in said record of said printed order. It is further Ordered, that said clerk cause to be sent to the counsel rep- resenting the complainant and the defendants in said cause two copies to each firm as the same are printed, and two copies to each of the receivers and their counsel. It is further Ordered, that the receivers in said cause pay all proper bills for the printing herein ordered as the same may become due from time to time, and they have credit for such dis- bursements in their accounts. No. 644. Petition of Defendant for an Order Authorizing Receivers to Deliver to it the Possession of Railway Property in Their Hands. The Circuit Court of the United States for the District of . The A. B. Trust Company, Complainant, vs. The C. & D. Railway Company et al., De- fendants. The petition of the C. & D. Railway Company, defendant herein, respectfully shows to this court: First. That this is a cause ancillary to the main suit be- tween the same parties, in the Circuit Court of the United States for the District of . Second. That in the said main suit the C. & D. Railway Company hath heretofore presented its petition praying for an order of the court requiring the receivers of the C. & D. Railway to turn over and deliver possession of the said rail- way and property to the said C. & D. Railway Company; and that prior to the submission of the petition the receivers filed a report, and that upon the said petition and report the court did, upon the day of , enter an order con- 8l4 SUITS IN EQUITY, formably to the prayer of the said petition, and that copies of the said petition, and of the said report and order of court, are hereto annexed and marked respectively Exhibits " A," " B " and " C," and made a part hereof. Wherefore, your petitioner prays that the said order of the court may be spread upon the records in this court, and may be by this court confirmed and approved, and made the order of this court in this ancillary cause so far as the same may be necessary in order to protect all the rights of all the parties in interest as against the property within the jurisdiction of this court. The C. & D. Railway Company, By J. W., Third Vice President. Attest: ISeal.l H. B., Secretary. R. & R., Solicitors for C. & D. Railway Company. State of , County of , ss. H. B., being duly sworn, deposes and says: That he is- the secretary of the C. & D. Railway Company, petitioner herein ; that he has read the foregoing petition and knows the contents thereof; that the allegations therein contained, as far as they relate ta his own acts, are true, and as far as they- relate to the acts of others he believes them to be true. That in regard to all matters and things in the foregoing petition alleged which are not within the personal knowledge of this deponent, the deponent has been fully informed, and he believes that the same are true. H. B. Sworn to before me this day of , A. D. . [Seal.'] J., Notary Public, County. RECEIVERS ANCILLARY PROCEEDINGS. 815 No. 645. Ancillary Decree. l^Capizon."] It appearing to the court, by certified copy herewith filed, that in the main suit between the same parties in the circuit court of the United States fijr the district of , to which this cause is ancillary, there was duly entered, on the day of , the following decree : \Set forth decree in full?^ It is hereby ordered, adjudged, and decreed that the said decree be spread upon the records of this court, and that the said decree be and hereby is approved and confirmed, and made the decree of this court in this ancillary cause so far as the same may be necessary to protect all the rights of all the parties in interest as against the property within the jurisdic- tion of this court. A. P.- Dated . Circuit Judge. No. 646. Ancillary Order, Confirming and Directing Sale to a Reorganized Manufacturing Company. \Caption.'\ On reading and filing the report of S. M. and H. C, re- ceivers of the property and assets of the C. D. Co., duly veri- fied on the day of , 1893, with the exhibits as in said report specified, including a copy of all the papers pre- sented to the chancellor of New Jersey, and upon which an order was made by the said chancellor on the day of , 1893, and duly entered, whereby the said chancellor at the domicile of the said corporation did order, adjudge, and decree that the sale theretofore made by S. M. and H. C, receivers of the said C. D. Co., of the assets and property of said corporation to G. C, E. T., and G. H. should be ratified, approved, and confirmed, and by which order the said receiv- ers were authorized and directed to carry out the sale; and 8l6 SUITS IN EQUITY. whereas it appears that prior to the making of said order by the said chancellor of New Jersey the said receivers pre- sented their report to him bearing the date of the day of , 1893, reporting the bid made by the reorganization committee for the property and assets of the C. D. Co., or for the entire property, subject to existing liens and obligations, the sum of dollars, payable upon confirmation of sale, dollars in cash, and dollars in the first mortgage, six per cent, gold bonds of the U. C. Co., being a new cor- poration formed to acquire said property and carry out the reorganization, and that they had accepted the same for the reasons set forth in their said report, subject to the approval of the court, and that thereupon it was ordered by the said chancellor that notice should be given to each and every stockholder and creditor by delivering or mailing to him a copy of the order to show cause made upon such petition, returnable upon the day of , 1893, why the same should not be granted, and that each and every of the said stockholders and creditors had an opportunity of appearing and of being heard thereon, and that upon the return day thereof, after such service duly made, the said chancellor did, after hearing all parties, make the order aforesaid; and whereas it appears to the court that the property of the said C. D. Co. has been sold for the highest price that could be obtained therefor, and that it is for the interest of the credi- tors and stockholders alike that said sale should be confirmed. Now, therefore, on motion of Messrs. X. & X., solicitors for and of counsel with the said receivers, on hearing Messrs. Z. & Z., counsel for the receivers, it is ordered by the court that the sale heretofore made by S. M. and H. C, receivers of the C. D. Co., to G. C, E. T., and G. H., be and the same is hereby ratified, approved, and confirmed, and the said re- ceivers are hereby authorized, ordered, and directed to grant, bargain, sell, assign, transfer, convey, set over, and confirm unto the said purchasers, as joint tenants, or to their assigns, all the real estate and personal estate, good will, choses in RECEIVERS ANCILLARY PROCEEDINGS. 817 I action, effects and assets of the said . defendant corporation, the C. D. Co., for the consideration aforesaid, and upon the terms set forth in the bid made by said purchasers. And the said receivers are hereby authorized, ordered, and directed to execute and deliver any and all deeds, bills of sale, conveyances, assignments, transfers, and other instru- ments whatsoever necessary, proper, or advisable for the vest- ing of the said property and effects so sold in the said trus- tees or their assigns. And it is further ordered, adjudged, and decreed that upon the delivery of deeds and conveyances by the said receivers to the said purchasers, and upon payment of the considera- tion agreed upon and the performance of the conditions of the sale by said purchasers, that all the right, title, and in- terest of the C. D. Co. of, in, and to all real estate, personal property, good will of business, choses in action, stock, or other effects or property, or things of value whatsoever, shall be and become fully vested in the said purchasers or their as- signs, fully and effectually as the said receivers may, can, or ought to convey the same, and as fully and effectually as this court can authorize or empower them to convey the same. J-S., Dated . Circuit Judge. 8l8 SUITS IN EQUITY. JUDICIAL SALES. No. 647. Order for Sale. The United States of America, District of , ss. The President of the United States of America to the Marshal of the District of . You are hereby commanded, in pursuance of an order of the district [or, circuit] court of the United States, for the district of aforesaid, made at the term there- of, 1894, in the case of A. B. against C. D., to proceed with- out delay, and cause to be appraised, advertised, and to sell according to law [here describe the property] , and that your proceedings in the premises you make known to our said district [or, circuit] court of the United States, within and for the district of , according to law, and have you then and there this writ. [Add teste according to court issuing the writ. See Nos. 55 and 56.] No. 648. Marshal's Appraisement of Real Estate. The United States of America, \ In the district [or, circuit] for the y court. District of , ss. j No. . A. B., plaintiflf, against C. D., defendant. An appraisement taken at the city of , in the county of , and state of , and within the district aforesaid^ JUDICIAL SALES. 819 on , the day of , 1894, before H. C, marshal of the United States for the district of , in obedi- ence to the command of a certain order of sale [or as may be] in the above entitled cause issued from the district \or, cir- cuit] court of the United States for said district of , and to him directed, dated at the city of , state Pursuant to said order of sale, the said H. C, marshal of the United States for the district of aforesaid, did, on the day of , 1894, in compliance therewith, and according to the statute in such case made and provided, summon an inquest of three judicious, disinterested free- holders, resident in said district, to wit : E. P., G. H., and I. J., who are duly sworn and charged to appraise at its true value in money the lands and tenements of the said C. D., defendant, described in the words and figures following, to wit : [Here describe the property!] , Whereupon the said appraisers, each of whom doth for himself hereby certify that he is a resident freeholder in said district, say, upon their oaths, that the premises herein- before described, upon actual view thereof, are of the value of : First tract, dollars. Second tract, dollars. Third tract, dollars. As a whole, dollars. In testimony whereof, as well I, H. C, marshal of the United States for the district of , as the inquest aforesaid, have to this appraisement set our hands and seals on the day and year first above written. H. C, U. S. Marshal district of . [Seai:\ E. F. [SeaV] G. H. [Seai:\ The United States of America, District of , ss. I. J. [Seai:\ I do hereby certify that the above named appraisers were 820 SUITS IN EQUITY. freeholders and residents of said district, and that they were duly summoned and sworn by me, according to law, on the day and year first above written. H. C, United States Marshal for the district of . No. 649. Marshal's Report of Sale of Real Estate. The United States of America, District of . Received this writ the day of , 1894, and, pur- suant to its command, the undersigned did, on the day of , 1894, on the premises, near the town of , county of , state of , and within the district aforesaid, by the oaths of E. F.,*G. H., and I. J., three judicious, disinter- ested freeholders, resident in said district, cause to be ap- praised at their true value in money the lands and tenements described in said order, to wit: \Here set forth a full descrip- tion of lands and tenements^ The report of said appraisers is hereto attached, marked "A," and made part hereof. A copy of said appraisement was, by the undersigned, immediately deposited with the clerk of the district [or, circuit] court of the United States for the district of , to be by him filed in said cause. Also, notice of the sale of said premises was by the under- signed given in the \give name of paper\ a weekly newspaper, published and of general circulation in the county of , state of , where said lands are situate, for more than thirty days prior to the day of sale, and appeared in said paper weekly on \set forth the days'], as will more fully appear by reference to the proof of publication herewith filed, marked "B." Afterwards, to wit: on the day of , 1894, at the front door of the court-house, in the town of , county of , and state of , at the hour of one o'clock, solar time, JUDICIAL SALES. 821 the time and place named in said advertisement of sale, said lands and tenements were by the undersigned offered for sale at public outcry, in the presence and hearing of a number of persons present and having an opportunity of bidding thereat, when came J. S., who bid to pay therefor the sum of dollars, and said sum being more than two-thirds the ap- praised value of said premises, and being the highest and best bid offered for said premises, I therefore publicly struck off and sold to the said J. S. the said lands and tenements for the said sum of dollars, and the undersigned brings said money into court, and awaits its further order in the prem- ises. H. C, United States Marshal for the district of . No. 650. Appointment of Special Masters to Sell Property (i). [Caption.] It is further ordered that such sale shall be made without valuation, appraisement, redemption or extension, and shall be made by and under the direction of E. M., of , and H. C, Esq., of who are hereby appointed Spe- cial Masters for that purpose, and who are directed to make and conduct said sale, and to execute a deed or deeds of con- veyance of the property sold, to the purchaser or purchasers thereof, upon an order confirming such sale and upon pay- ment or settlement of the purchase price bid as hereinafter provided. Said sale shall be made at public auction to the highest bidder, at the terminal freight station of the respond- ent railroad company on street, in the city of , in the state of , on the property to be sold, on a day and at an hour to be fixed by said Special Masters, at the request of the solicitors for the complainant or upon further order of the court, and notice of the time, place and terms of said sale. 822 SUITS IN EQUITY. ■describing briefly the property to be sold and referring to this decree, shall be published at least once a week for six suc- cessive weeks preceding the date of such sale, in at least one newspaper in each of the following places, to wit, the city of , in the state of — — ; the city of , in the state of ; the city of , in the state of , and the city of , in the state of . The Special Masters may, at the request of the complainant's solicitors, adjourn or post- pone said sale and may, without further notice, proceed with the sale, on any day to which the same may thus have been adjourned, or they may give such further notice of sale in addition to the notice above described or of any adjournment thereof, as the complainant's solicitors may request. (i) This or a similar clause is usually inserted in a decree ordering a sale of property. No. 651. Advertisement of Railway Foreclosure Sale. The Circuit Court of the United States for the District of . Master's Sale Under Decree of Foreclosure in the Matter of the C. & D. Railroad Company. The A. B. Trust Company, Complainant, vs. In Equity. The C. & D. Railroad Company et al, De- No. . fendants. Whereas, at a term of the Circuit Court of the United States for the District of , held at the city of , in the state of , on the day of , a decree was en- tered in the above entitled suit foreclosing the mortgage of said defendant, the C. & D. Railroad Company, mentioned and described in said complainant's bill of complaint ; and Whereas, it is therein ordered, adjudged and decreed that all the corporate property now owned or hereafter to be ac- JUDICIAL SALES. 823 quired by the said C. & D. Railroad Company in the state of Kansas and other states, and all its estates, right, title, inter- est and equity of redemption therein ; that is to say, all of its railroad now constructed and in operation and yet to be con- structed, including extensions, branches, spurs and side- tracks, and including right of way, roadbed, superstructures, iron, steel, rails, ties, splices, chains, bolts, nuts and spikes, all land and depot grounds, station houses and depots, via- ducts, water tanks, bridges, timber materials and property purchased or to be purchased or owned by it, for the construc- tion, equipment or operation of said road, all machine shops, tools, implements and personal property used therein or upon or along said railroad, or at its stations ; all engines, tenders, cars and machinery, and all kinds of rolling stock, whether now owned or hereafter purchased by said railroad company, and all other property of said company now owned or here- after to be acquired, and all its rights and privileges therein or appertaining thereto, and all revenues, tolls and income of said railroad and property, and all franchises and rights of said railroad company, and all property and rights acquired and hereafter to be acquired by virtue and under authority thereof; excepting, however, such lands now owned or here- after acquired by said railroad company as are not or may not be necessary or used for right of way, depot grounds of said railroad, or in operating the same, be sold under the direction of P. D., the undersigned Special Master, and 'the proceeds of such sale applied to the satisfaction of said judgment, in- terests and costs, except such as is otherwise provided for in said decree; and Whereas, it is further ordered, adjudged and decreed that said Special Master shall sell said property for cash, or for cash and bonds, and as an entirety, and without appraise- ment and without the benefit of any stay, valuation or re- demption laws, at public auction, to the highest bidder there- for, at the city of , in the state of ; and 824 SUITS IN EQUITY. ■, Whereas, it is further ordered, adjudged and decreed that notice of the time and place of said sale shall be given by said Special Master by advertising the same at least three times in each week for the term of five weeks preceding -the day of sale, in some newspaper published in the city of Boston, m some newspaper published in the city of New York, and in some newspaper published in the city of Topeka, state of Kansas, and also once* a week for four weeks in some news- paper published in county, ; and that such sale shall be had at such time and place as said Special Master shall in said notices of said sale appoint; and Whereas, it is further ordered, adjudged and decreed that said Special Master shall receive no bid at such sale for a less sum than one million dollars ($1,000,000), and no bid from any person who shall not first deposit with him as a pledge that such bidder will make good the bid in case of its acceptance, the sum of seventy-five thousand dollars. ($75>- 000) in money or said bonds secured by said mortgage to the complainant to the amount of two hundred thousand dollars ($200,000), exclusive of interest; the deposit so received from the successful bidder shall be applied on account of the pur- chase price; the balance of the purchase price may be paid either in cash, or the purchaser may satisfy the same in whole or in part by paying over and surrendering any of the out- standing and unpaid receiver's certificates, and by properly releasing and discharging any claims which have heretofore, or may be hereafter, adjudged by this court to be valid and prior in right to the lien of said mortgage, and by presenting and surrendering said first mortgage bonds and the overdue and unpaid coupons pertaining thereto. For more particular- ity, both as to the property to be sold and the terms of the sale, reference is made to the decree of foreclosure entered in the above suit. Now, therefore, public notice is hereby given that I, P. D., Special Master, in pursuance of the provisions of said decree, will, on Monday, the day of , A. D. , between JUDICIAL SALES. 825 the hours of ii o'clock a. m. and 2 o'clock p. m. of said day, in the city of , in the state of , at the front door of the court house in said city, sell at public auction to the high- est bidder, in accordance with the terms and conditions of said decree, the above described property, lands and premises, and apply the proceeds thereof as is by said decree made and provided. P. D., Special Master, Circuit Court of the United States, Dis- trict of . No. 652. Advertisement of Sale by Special Master. [Caption.] By virtue of a decree of foreclosure and sale made and en- tered by the Circuit Court of the United States for the Division of the District of , held at therein, on , in the above entitled cause, I, as Special Master ap- pointed for such purpose by the said decree, will sell at public vendue, to the highest bidder for cash, in bar and free of all right and equity of redemption in said defendants P. C. and A. C, at the door of the court house of county, in the city of , on the day of , between legal hours, the following described lot or parcel of ground de- scribed in the bill in said cause and situate in the city of , county of -, and state of , to wit : [Describe prop- erty to be sold.l J. N., Special Master. No. 653. Report of Special Master of no Sale for Want of Bidders. [Caption.] To the Hon. the Judges of the Circuit Court of the United States for the District of : By the decree entered by this honorable court in the above 826 SUITS IN EQUITY. styled cause on June , which decree was amended by a supplemental decree entered therein on , I was appointed Special Master to sell the railroad, franchises and other prop- erty of the C. & D. Railroad Company upon the terms and in accordance with the provisions of said decree as amended. And the said railroad company, and those claiming under it, and all persons having a right to redeem under said de- cree, having each failed on or before the day of , the time limited in said decree as amended to pay the sums adjudged by said decree as amended to be due to the persons by said decree adjudged to have liens upon the property and franchises of said railroad company under the statute of the state of , entitled " An Act to create a lien on canals, railroads and other public improvements in favor of persons furnishing labor and materials for the construction and im- provement thereof," and having failed to pay the sums, with interest, adjudged due to complainant, and the costs of this suit, I proceeded to advertise a sale of said property and franchises for on the day of , upon the terms and in accordance with the provisions of said decree as amended, by causing to be inserted once a week for four successive weeks before said day of sale, in each of the following named newspapers, to wit, the Commercial, a newspaper pub- lished in the city of ; the Sun, a newspaper pub- lished in the city of , and the Enterprise, a news- paper published in the city of , the following advertisement, to wit: [Here insert advertisement in full.'] On Saturday, the day of , I attended at .the time and place stated in said advertisement, and then and there proclaimed the terms and conditions of sale, and made public outcry, for sale to the highest bidder, of said railroad, fran- chises and property of said railroad company, upon said terms and conditions: And no person offering to bid for said railroad, franchises and property, I thereupon, as authorized by said decree, de- clared said sale postponed until Monday, the day of JUDICIAL SALES. 827 , unless this honorable court should enter some addi- tional order in regard to the sale of said railroad franchises and property. All of which is reported to this honorable court for its information and such action as it may deem proper in the premises. E. M., Special Master. Costs of advertisement: Commercial $68 80 Sun 20 GO Enterprise 20 00 Total $108 80 No. 654. Supplemental Report of Special Master to Make Sale, Post- poning Sale. To the Hon. the Judges of the Circuit Court of the United States for the District of : Since my report of offering for sale the railroad, franchises and other property of the C. & D. Railroad Company upon the day of , and in accordance with the postpone- ment of said sale then announced, on Monday, the day of , I attended at the hour and place stated in the adver- tisement set forth in said former report, and then and there proclaimed the terms and conditions of sale, and made public outcry for sale to the highest bidder of said railroad, fran- chises and property of said railroad company upon said terms and conditions set forth in said former report, and no person offering to bid for said railroad, franchises and property, I thereupon, as authorized by the decree herein, declared said sale postponed until the further order of this honorable court. 828 SUITS IN EQUITY. All of which is reported to this honorable court for its in- formation and such action as may be deemed proper in the premises. E. M., Special Master. No. 655. Report of Special Commissioner to Make Sale of Postpone- ment. To the Hon. the Judges of the Circuit Court of the United States for the District of : By the decree entered by this honorable court in the above styled cause, on the day of , which decree was amended by a supplemental decree entered therein on the day of , and further amended by a supplemental decree entered on the day of , I was appointed Special Master to sell the railroad, franchises and other property of the C. & D. Railroad Company upon the terms and in accord- ance with the provisions of said decree as amended. And the said railroad company and those claiming under it, and all persons having a right to redeem under said decree, having each failed on or before the day of , the time lim- ited in said decree as amended, to pay the sums adjudged by said decree as amended to be due to the persons by said deorec adjudged to have liens upon the property and franchises of said railroad company under the statute of the state of , entitled " An Act to create a lien on canals, railroads and other public improvements in favor of persons furnishing labor and materials for the construction and • improvement thereof," and having failed to pay the sums, with interest, ad- judged due to complainant, and the costs of this suit, I pro- ceeded after , to advertise a sale of said property and franchises for , upon the terms and in accordance with the provisions of said decree as amended by causing to be inserted once a week for four successive weeks before said JUDICIAL SALES. 829' day of sale in each of the following named newspapers, to wit : The Commercial, a newspaper published in the city of ; the Sun, a newspaper published in the city of , and the Enterprise, a newspaper published in the city of , the following advertisement, to wit: [Here insert advertisement in full.J On Saturday, the day of , I attended at the time and place stated in said advertisement, and then and there proclaimed the terms and conditions of sale, and made public outcry for sale to the highest bidder of said railroad, fran- chises and property of said railroad company, upon said terms and conditions. And no person offering to bid for said railroad, franchises and property, I thereupon, as authorized by said decree, de- clared said sale postponed until Saturday, , unless this, honorable court should enter some additional order m regard to the sale of said railroad, franchises and property; and I posted in a public place in the station building on the prop- erty of said railroad company at a notice of said postponement, in words and figures as follows, to wit: [Here insert notice of postponement in full.'] I further report that in pursuance to said notice of post- ponement, on Saturday, the -day of , I attended at the hour and place stated in said advertisement, and then and there proclaimed the terms and conditions of sale and made public outcry for sale to the highest bidder of said railroad, franchises and property of said railroad company upon said terms and conditions; and no person offering to bid for said railroad, franchises and property, I thereupon, as authorized by said decree, declared said sale postponed until Saturday, the day of , unless this honorable court should enter some additional order in regard to the sale of said rail-' road, franchises and property; and I posted in a public place in the station building on the property of said railroad com- pany at , a notice of said postponement in words and ^30 SUITS IN EQUITY. figures as follows, to wit: [Here insert notice of postpone- ment in full.'] All of which is reported to this honorable court, for its in- formation and such action as it may deem proper in the prem- ises. E. M., Special Master. No. 656. Report of Sale by Special Master. [Caption.] To the Hon. the Judges of the Circuit Court of the United States for the District of : The undersigned, appointed Special Master in the above styled cause by a decretal order entered therein on , and amended , to make sale of the property and franchises lately belonging to the C. & D. Railroad Company, respect- fully reports : That having on postponed the sale of said property and franchises, under authority of said decretal order, as re- ported to the court in my report filed herein on , which report is referred to and made a part of this report, I caused the written notice of postponement referred to in said report, which, on , I affixed to the depot of said railroad com- pany at , upon the property lately belonging to said com- pany, to be published once a week for four successive weeks before , the day to which said sale was postponed in the Commercial, a newspaper published in , and in the Sun, a newspaper published in . I further report that on the day fixed for said sale, to wit, -, I proceeded to the city of , and then and there at the time and place advertised for said sale, offered for sale to the highest bidder the said railroad property and fran- chises lately belonging to said railroad company, in accord- ance with the terms of said decree, of which terms I then and JUDICIAL SALKS. 83 1 there made public proclamation; at which time and place G. H., J. K., L. M., N. P. and R. S., having deposited with me the sum of $ in cash and certified checks satisfactory to me, bid for said railroad property and franchises the sum of dollars, and assumed all of the liabilities of the receiver herein which have accrued since October , and undertook to return to the fund in court all sums which may have been, or may be, used out of said fund in repair or betterment of said railroad. Said bid being the only bid made or offered at said sale, I thereupon struck off said railroad property and fran- chises to said bidders as purchasers. I further report that in accordance with the terms of said sale, said purchasers having executed and delivered to me their two bonds; the first bearing date , payable on or before three months after the date thereof, with interest at 6 per cent, per annum until paid, for the sum of ($ ) dollars, and executed by said purchasers, and the second bear- ing date , payable on or before six months after the date thereof, with interest at 6 per cent, per annum until paid, for the sum of ($ ) dollars, executed by said purchasers as principals and by the Fidelity & Deposit Company of as surety. Said bonds were executed by said G. H. and J. K., by A. F., their attorney in fact, and by said L. M., N. P. and R. S., by G. W., their attorney in fact ; and said six months' bond was executed by the Fidelity & Deposit Company of , by W. S., its general agent and attorney in fact. I further report that on the day of , under au- thority of said decree authorizing the purchaser at said sale, to anticipate the payment of either of said bonds, said G. H., J. K. and L. M., paid me upon said six months' bond the sum of ($ ) dollars, which sum I have endorsed as a credit upon said six months' bond as of said date. I return into court herewith, as part hereof, said bonds, to- gether with said powers-of-attorney, excepting the power-of- attorney from the Fidelity & Deposit Company to W. S., 832 SUITS IN EQUITY. which is on file in the clerk's office of this court ; and offer to pay into court herewith the sum of ($ ) dollars, being the said cash payment of $ on said payment of $ made as aforesaid upon said six months' bond. All of which is respectfully submitted. E. M., Special Master. No. 657. Order nisi Confirming Sale (i). [^Caption.^ The report of E. M., heretofore appointed Special Master to make the sale heretofore ordered and decreed, having been duly filed, and it appearing therefrom that said Special Master duly struck off and sold as one parcel and as an entirety the whole of the properties of every sort and description of the C. & D. Railway Company, wherever situated and of what- ever sort and nature, free and clear of all the liens of each and every of. the parties to this cause, but subject to the lien of the mortgage of the E. & F. Railroad Company so far as said lien exten'ds, to R. C., for the sum of dollars ; It is, on motion of said complainant, the A. B. Trust Com- pany, ordered that said report and sale be confirmed, unless cause to the contrary thereof be shown in eight days after notice, to the parties to the several bills of complaint in this cause, of their solicitors, of the filing of said report. (i) As to the practice of entering an order nisi confirming a sale, see Pewabic Mining Co. vs. Mason, 145 U. S. 363-4. No. 658. Decree Denying Motion to Set Aside Sale and Order Absolute Confirming Sale. ICapHon.] Now came on for hearing the motion of the defendant, the C. & D. Railway Company, to set aside the sale of the railroad JUDICIAL SALES. 833 and other property of said defendant, for the reasons in said motion set forth, which motion was filed at the clerk's office of this court on the day of ; and the court having heard the parties by their counsel and being now fully advised in the premises, finds that said motion should not be granted, and it is ordered, adjudged and decreed that the same be over- ruled and denied. And thereupon there was submitted to the court the re- turn of H. G., the Master heretofore appointed for that purpose, of his proceedings under the order of sale issued to him in pursuance of the decree of foreclosure and sale hereto- fore entered herein, and it appearing, from said return and the proceedings of said Master that he has in all things com- plied with the provisions of said decree and order, and has advertised and sold the property in said decree and order de- scribed in all respects in accordance therewith, and that R. C. Martin was the highest and best bidder for all of said proper- ty, and bid therefor and for each part thereof a sum equal to the sum fixed in said decree for the same and for the whole property a sum greater than the upset price fixed therefor, and has deposited with the Master the sum of $ , the sum re- quired by said decree, and said Master has deposited the same in the registry of the court, and the purchaser has otherwise complied with the terms of said purchase. And it appearing that the objections of the defendant rail- road company to the confirmation of said sale have, as here- inbefore recited, been filed in its motion to set aside said sale and overruled as hereinbefore provided, and the court now coming to the hearing of complainant's motion to confirm said sale and approve of the report and proceedings of said Master, and being now fully advised in the premises, do find that the same are in all respects regular and legal, and that said proceedings and sale ought to be confirmed. It is therefore ordered, adjudged and decreed that said pro- ceedings and sale be and the same are hereby in all respects confirmed, and that upon full payment being made by said 834 SUITS IN EQUITY. purchaser, as provided in said decree, that deeds of convey- ance be made by said H. G., Special Master as afore- said, to said purchaser, R. C, or his assigns, of all the property, rights, privileges and immunities in said decree described, in accordance with the terms and subject to the con- ditions of said decree. No. 659. Petition to Open Sale before Confirmation. [Caption.'] Your petitioners, D. .S., C. M., E. T. and D. A., for them- selves and all persons similarly interested and willing to join herein, would respectfully represent unto your honor that the sale made herein on , should not be confirmed, but on the contrary, should be set aside and a new sale ordered. Your petitioners represent that the amount of the mechan- ic's lien claims in this case, without counting interest since the last judgment in favor of your petitioners, amount to about $ . The amount which the property brought at the sale on October , was $ , but the purchaser will have to pay besides that about $ , making $ . The amount of the receiver's- certificates and costs to come out of this fund is $ , leaving only $ distributable among the $ of mechanic's lien claims. This will yield to these claims only loj^ per cent. This claim of your petitioners represents labor and material furnished by them in building this road. It is for so large an amount as that ever since it failed of payment your petition- ers have been seriously crippled in their business and the loss to them is of most serious consequence. Your petitioners say that they have exercised all diligence that they knew how or were capable of in endeavoring to have the property bring a fair price. When the sale was ad- vertised through the fall of your petitioners, at great expense to themselves, and after great labor, procured an JUDICIAL SALES. 835 agreement, as they supposed among the Henholders, by which the property could be bought in. The deposit was furnished through your petitioners, and the bonds for the deferred pay- ment arranged for at their expense. They accordingly bought in the property at $ , which they believed at the time was much less than its value. It appeared that after they had made their deposit and ex- ecuted their bonds, a large mechanic lienholder, who they in good faith believed had come into the plan, refused to be bound by it. Without the adherence of this lienholder it was impossible for these petitioners to carry out the plan. They therefore, after a great deal of exertion, arranged a transfer of their bid to X. Y., at $ . This your petition- ers believed to be a very great sacrifice, but to it their lack ol capital compelled them. Upon the failure of the said X. Y. to comply with the terms of payment, the property was again advertised for sale; whereupon these petitioners again endeavored with all dili- gence, to procure some person to bid for the property or some person to join with them in bidding for the property. When the sale was about to come off, on , one of these petition- ers came to . They had arranged with J. W. to raise the $ with which to make the deposit in order to make a bid. In an affidavit accompanying the petition they have fully detailed the circumstances under which they failed to obtain the benefit of this deposit. If they had obtained it they would have bid at least $ and could and would have complied with all the terms of sale. They would only have stopped there in the fear that with their diminished resources they might not be able to promptly comply with the terms of sale at a higher price. On the evening of , your petitioners were informed by the counsel for the purchaser, X. Y., that he expected upon the next day, to bid the full amount due by the said X. Y., and that in order to qualify himself to make this bid he ex- pected to receive $ from Philadelphia. He further in- 836 SUITS IN EQUITY. formed your petitioners that the money for the deposit, $ , was to be deposited in a certain national bank in Philadelphia to the credit of the American National Bank of the city of Louisville; that the Philadelphia bank was to telegraph to the American National Bank the fact of this deposit, and the American National Bank was thereupon to certify a check for $ to the said counsel of the said X. Y. ; that by some mischance the money had not been offered for deposit in the Philadelphia bank until about five minutes after banking hours ; that at that time a cashier's check upon a bank in Cam- den (which is just across the river from Philadelphia) had been presented for deposit, but the cashier of the Philadelphia bank preferred to wait until the next morning before receiv- ing the deposit as cash and notifying the American National Bank at . To avoid all contingencies the said counsel of X. Y. thereupon procured the president of the American National Bank in Louisville to give the counsel of these peti- tioners a cashier's check for $ , and instructed the counsel for these petitioners to deliver the said check to the counsel for the said X. Y. at (where the sale was to be made) upon telegraphic advice, on the morning of the of ; that the deposit had been duly made in Philadelphia, to the credit of the American National Bank. The petitioners state that these statements made by the counsel for the said X. Y. were all made in the best faith and were fully believed by him and 'by these petitioners to be ex- actly true. Your petitioners therefore felt satisfied that the said counsel for X. Y. would bid at the sale an amount suffi- cient to cover what was due from X. Y., and would have the $ to put up with the Master making the sale, in order to justify the bid. The petitioners, with their counsel, and with the counsel for the purchaser, went to next day, , arriving there about II o'clock. The sale was advertised to come off be- tween 10 and 2. Inquiry was immediately made as to wheth- er any telegram had come from the American National Bank JUDICIAL SALES. 837 to counsel for your petitioners, directing him to turn over the check which he had in his possession to counsel for the said X. Y. None had come. Thereupon, at the request of all the parties, E. M., the Master appointed to make the sale, agreed that he would begin at half-past one. In the meantime the counsel for X. Y. heard, through tele- gram from Philadelphia, that the transmission of the money- had been delayed, and he was requested to delay the sale so that it could come. At half-past one o'clock, the counsel for your petitioners was called up by telephone, from the Ameri- can National Bank and the president of said bank stated to said counsel that he had received advices from Philadelphia that the deposit had not been made. Believing that there had been complete failure upon the part of X. Y. to make the deposit, no further request was made of the Master to postpone the sale, and he thereupon put up the property, when the present purchasers were the only ones who qualified, and the property was knocked off to them at the upset price. At about half-past three, or less than an hour and a half after the property had been thus knocked off, the counsel for your petitioners was again calle'd up by telephone from Louis- ville and the president of the American National Bank in- formed counsel for your petitioners that he had received tele- .graphic advices from Philadelphia that the deposit had been made, and directed the counsel for your petitioners to deliver to counsel for X. Y. the said check for $ , which was im- mediately done. And so it is that although your petitioners submit to the court that they had every reason to believe that there would be three bidders at said sale, viz., those persons who were represented by B. H., Esq., and who had announced to the court that they would bid, and the said X. Y. and themselves. At last, when the time came, only one of them qualified, and hence the present purchasers were able to get the property at the upset price. 838 SUITS IN EQUITY. Your petitioners therefore aver that it was only by acci- dent that the present purchasers obtained the property at the upset price; and this is an accident which in equity and good conscience your petitioners beheve they are entitled to be re- lieved from. Your petitioners are informed and so state that a perfectly solvent person has been found who is ready to give.$ for the said property, and who will, if the court shall open the bidding, make and comply with such a bid. This is an advance upon the former bid of $50,000, all of which will be coming to the mechanic's lienholders, and will enable them to realize instead of about iqj^ cents on the dollar for their claims, more than double this amount upon each dollar of their claims; and to these petitioners alone will amount to nearly $ advance. Your petitioners further say that they have, so far as they are aware, lacked nothing in diligence to endeavor to avoid for themselves and the other mechanic's lienholders the great loss. Your petitioners say that now an opportunity is afforded them of saving a large sum ; they say that in their judgment this property is worth largely hiore than even the $ , and at least the sum of $ , and the price bid by the present purchasers is grossly inadequate. Wherefore your petitioners pray that this, their petition, may be taken as an exception to the report of sale and as an application to set the sale aside, upon such terms and condi- tions of indemnity to the purchasers as the court shall be ad- vised, and of security as to the new bid as the court may order ; and your petitioners are entirely willing that the fund in court shall be used to pay the purchasers such just allowances as the court may deem right, and that the new sale may be made at such short date as the court may direct ; and your petition- ers will ever pray. D. S., Etc. [Veri£cation.] (1) This petition was sustained by the Circuit Court and on appeal in Magann vs. Segal, 92 Fed. Rep. 252, 34 C. C. A. 323. JUDICIAL . SALES. 839 No. 660. Petition to Join in Foregoing Petition to Set Aside a Sale. [Caption.] The lienholders whose claims have been adjudged in the ■decree in their favor, viz. : [Naming them'], respectfully rep- resent to the court that the application made by D. S. to this honorable court to refuse to confirm the sale made in this suit on the day of , and to order a new sale, is clearly beneficial to all the parties to said suit interested in the pro- ceeds of sale,, viz. : the laborers and contractors in whose favor liens have been adjudged. Petitioners further respectfully represent that they are will- ing that a resale be ordered upon the terms specified in the said petition of D. S., viz. : that the successful bidders at the late sale aforesaid be reimbursed all their expenses out of the proceeds of sale accruing to said lienholders; that the said sale be made upon any short notice or any notice which the ■court may direct and upon such other terms as the court may consider proper ; and they unite in the prayer of said petition ■of said D. S. and pray as. is prayed in said petition. R. & R., Attorneys for Petitioners. No. 661. Petitions Consenting to Set Aside a Sale. [Caption.] Your petitioners. S. Bridge Company, J. W. and the Car- negie Steel Company, limited, would respectfully join in the petition to set aside the sale which was made on October , and state that they are willing that the purchaser may have all just allowances, and that the court may resell the property at such short date as may seem to it fit. Your petitioners will ever pray. X. & X., Attorneys for Petitioners. .840 SUITS I^f EQUITY. No. 662. Order Setting Aside Sale (i). [Caption.] This cause having come on to be heard upon the applica- tion of the purchasers at the sale made herein , and re- ported to the court , to confirm the said sale, and upon the petitions and exceptions of [naming them'], and upon the proposition of the said X. Y., and the proposition of J. S., trustee, and upon the affidavit of the said purchasers and two affidavits of D. A., one of A. P., and one of S. T., and the court being advised, it is ordered, adjudged and decreed as follows : First. That the application of the said purchasers to con- firm the sale be and it is hereby overruled, that the petitions seeking to set aside the sale are sustained, and the said sale is hereby set aside and held for naught. Second. That the Special Master, Hon. E. M., shall forth- with proceed to sell the property described in the decree en- tered herein on the day of , as amended , upon exactly the terms set out in the said decree as amended, and after the same notice and at the same place; but the court having accepted the bid of J. S., trustee, for the purpose of ordering a resale the Master shall start the biddings at said, sale with a bid of $ in the name of J. S., trustee. Third. The said E. M. shall forthwith pay back to the pur- chasers the money paid to him by them, being the sum of dollars, said payment may be made to B. H., Esq., the attor- ney of record of said purchasers. Fourth. J. S., trustee, consenting, it is ordered that he pay over to S. M., receiver herein, the one hundred thousand dol- lars presented by him, the said J. S., trustee, as security, for his compliance with the offer made by him herein, and the: said S. M., receiver, now in open court, has had delivered to him the said dollars. The said S. M., receiver, shall pay into court the sum of dollars, to be applied as here- JUDICIAL SALES. 84I inafter directed. He shall use the balance of said fund, to wit, dollars in paying that amount of receiver's certi- ficates heretofore issued herein, paying the same to the order of their serial numbers, beginning with the lowest. He shall execute to the said J. S., trustee, a receiver's certificate dated this day in the sum of dollars, payable whenever the court shall order, bearing 4 per cent, per annum interest from date until paid. He shall retain possession thereof subject to the order of the court. If the said J. S., trustee, becomes the successful bidder, the said receiver's certificate shall be ap- plied upon his bid ; if he be not the successful bidder, he shall stand as the owner thereof subject to a priority in favor of the other outstanding receiver's certificates. Fifth. The twenty-five thousand dollars above mentioned to be paid into court by the said S. M., receiver, is so paid into the end that it may be applied to such allowances as the court may make to said purchasers. They shall be forthwith en- titled to such an amount thereof as represents the interest upon the money paid by them to the Hon. E. M., Special Master, from the date it was so paid until this date, and the further sum of dollars disbursed by them in securing the Fidelity & Deposit Company of to become surety upon their bond. Leave is given the said purchasers to present their petition herein setting forth what other items of allowance they are justly entitled to. Sixth. All questions as to how far the allowances made to the purchasers herein shall be paid by J. S., trustee, and how far they shall be charged upon the fund realized from the sale, and how far they shall be charged against X. Y., the former purchaser herein, are reserved for further consideration. Seventh. X. Y. and the Guarantors' Finance Company of Philadelphia, by D. W., their attorney, consent to the entry of this order, and this cause is retained for the purpose of making such further orders as may be necessary to exact from the said X. Y. and the Guarantors' Finance Company of 842 SUITS IN EQUITY. Philadelphia any deficiency that may be due upon their bonds after the sale is made herein. Eighth. The receiver shall report to the court his action under this order, within ten days from this date, and accom- pany the same with the receiver's certificates paid by him, properly canceled, and he shall cause the new certificate is- sued by him herein to be registered by the clerk of this court, the form thereof shall be the similar to the ones heretofore issued, except that it shall show upon its face that it is in- ferior to the other outstandingf certificates issued prior to this date. Ninth. The purchasers of the property at sale of , ob- ject to the entering of this decree and all parts thereof and except to the several rulings of the court. (i) This order was entered in Magann vs. Segal, 92 Fed. Rep. 252, 34 C. C. A. 323, where the circumstances under which a sale may be set aside are fully considered and the cases reviewed. See also Pewabic Mining Co. vs. Mason, 143 U. S. 356. No. 663. Decree Confirming Sale of R. R. Property (i). ICaption.J Now, on the 17th day of April, 1900, come again the par- ties by their respective solicitors, and come also the purchasers, Morton S. Paton and Richard B. Hartshorne, by their coun- sel, and the motion of the complainant. Continental Trust Company of the city of New York, that the report of Frank H. Shaffer and Merrill Moores, the Special Masters, filed herein on the 2d day of April, 1900, should be approved and confirmed, and that the sale of the mortgaged railroad, equip- ment, franchises and property of the respondent, Toledo, St. Louis & Kansas City Railroad Company, should be confirmed and made absolute, came on to be heard. JUDICIAL SALES. 843 And it appearing by the report of said Special Masters that said Special Masters haye fully complied with the directions of the decree dated the 1st day of April, 1898, entered in this cause, and of the decree entered in this cause, dated Novem- ber II, 1899, modifying said decree of April i, 1898, and of the decretal order entered in this cause on January 19, 1900, and of the decree entered in this cause on said January 19, 1900, re-entering and confirming said decree dated November II, 1899, as to the sale of said railroad, equipment, franchises and property; that said railroad, equipment, franchises and property have been duly advertised, offered for sale and sold to' said purchasers ; that said purchasers have made the deposit and payment required by said decrees and by the terms of sale, and that said sale ought to be confirmed. It is therefore ordered, adjudged and decreed, that the said report of said Special Masters be, and the same hereby is, in all things approved and confirmed, and that said sale to said Morton S. Paton and Richard B. Hartshorne, as joint tenants and not as tenants in common, as an entirety, without valua- tion, appraisement, redemption or extension, of all and sin- gular the railroad, equipment, franchises and property of the respondent, Toledo, St. Louis & Kansas City Railroad Com- pany, described in and by said decree entered in this cause, and dated the ist day of April, 1898, and, by said decree, ad- judged to be subject to the lien of the first mortgage of said respondent railroad company, at and for the sum of twelve million two hundred thousand dollars by them bid, be, and the same hereby is, in all things ratified, approved, confirmed and made absolute. And the said purchasers having deposited with the com- plainant. Continental Trust Company of the city of New York, ior the purpose of paying, satisfying and making good the bid of such purchasers for said mortgaged railroad, equip- ment, franchises and property, first mortgage bonds of said respondent, Toledo, St. Louis & Kansas City Railroad Com- pany, issued under said first mortgage of said respondent rail- 844 SUITS IN EQUITY. road company, dated June 19, 1886, to the amount at par of $8,814,000, bearing the coupon maturing June i, 1893, and all subsequent coupons and producing the certificate or cer- tificates of said trust company that it so holds the same sub- ject to the order of said Special Master, it is Ordered, adjudged and decreed, that such provision for the payment of the residue of said bid of said purchasers, is sat- isfactory to this court, and is hereby approved by this court. It is further ordered, adjudged and decreed, that upon the delivery by said purchasers to said Special Masters of said certificate or certificates of deposit of said trust company, the Speciasl Masters sign, seal, execute, acknowledge and deliver a deed or deeds of conveyance to said purchasers, as joint tenants and not as tenants in common, or to the persons or corporations to whom they may assign their rights, of all and singular the railroad, equipment, franchises and property so sold as aforesaid; that the respondent, Toledo, St. Louis & Kansas City Railroad Company, the complainant. Continental Trust Company of the city of New York, as surviving trus- tee under said first mortgage of said Toledo, St. Louis & Kansas City Railroad Company, and the receiver in this cause respectively, and all other parties to this cause, join in said deed or deeds of said Special Master, or execute and deliver separate conveyances of their property embraced therein on demand of said purchasers, their successors or their assigns, and that in default of such deed or deeds by any of the par- ties hereto, this decree shall have the force and effect of such deed or deeds, conveying, all its, their or his interest in said railroad, equipment, franchises and property so sold as afore- said ; that said purchasers shall have the right to assign their interest as an entirety or in parcels as said purchasers may determine; that upon filing such assignments with said Spe- cial Masters, said Special Masters and said parties shall make deed or deeds of conveyance accordingly, and that, in the event of any assignment by said purchasers of their said bid or interest, or any conveyance by them of said railroad, JUDICIAL SALES. 845 equipment, franchises and property, may be transferred to and by said purchasers on account of the purchase of said railroad, equipment, franchises and property, may be transferred in and assumed by such transferee or transferees, grantee or grantees, and thereupon said purchasers shall individually be discharged from. all such obligations and liability. It is further ordered and decreed that upon the delivery to said purchasers or to their successors or their assigns of said deed or deeds of conveyance to be made by said Special ■ Masters, the grantee or grantees therein shall fully possess and be invested with said railroad, equipment, franchises and property so sold and so conveyed as the absolute owners thereof; that on the exhibition to him of said deed or deeds, the receiver of this court who, until such exhibition thereof to him shall continue as heretofore, the operation of the mort- gaged premises, is authorized and directed, and is required, to let said grantee or grantees into possession of the premises •conveyed ; that the receiver or any party to this cause having possession of the same, deliver to said grantee or grantees all property embraced in said Special Masters' deed or deeds, together with and including any property and income in the hands of the receiver at any time acquired or received by him in the management of the mortgaged premises down to the time of such delivery of possession, subject, nevertheless, as hereinafter set forth and that said purchasers, their suc- cessors or their assigns on receiving said conveyance or con- vayances, shall be and are hereby, subrogated to all and singu- lar the rights of all parties to this action with respect to the railroad, equipment, franchises and property sold as afore- said, with the right to prosecute and defend all issued in this suit and all suits, actions and proceedings involving the same, whether in the name of any of the parties hereto, or of said receiver, or otherwise, including the right to prosecute pro- ceedings in error or on appeal. It is further ordered and decreed that said first mortgage "bonds and coupons deposited with the complainant Continen- 846 SUITS IN EQUITY. tal Trust Company of the city of New York, and forming the subject of its certificates of deposit which may be deliv- ered to said Special Masters, remain on deposit with said complainant trust company to abide the further order of the court herein. It is further ordered and decreed, that, upon making in accordance with said decree of April i, 1898, payment of the amounts by said decree directed to be paid in priority to the first mortgage bonds and the interest thereon, any residue of the fund realized from said sale, shall be applied, in accord- ance with said decree and as therein directed, toward the payment of the amount by said decree adjudged to be due at the date thereof, in respect of said first mortgage bonds, to wit, the sum of $12,028,500, with interest on said amount from the date of said decree to the date of payment ; that the distribution of the proceeds of sale, and all allowances and compensation are reserved for future order, and that the de- livery of said deed or deeds of conveyance and of the pos- session of said railroad, equipment, franchises and property sold as aforesaid, shall be subject to the right of the court to require such further payment or payments to be made in cash on account of said purchase price bid in order to meet claims which, under said decree, are or may become payable out of the proceeds of sale in priority to the said amount due on said first mortgage bonds as the court may from time to time direct, and the court reserves the right in case such purchas- ers, their successors or their assigns, shall fail or neglect to make any payment in cash on account of any unpaid balance of the purchase price bid within thirty days after the entry of an order requiring such payment and service of a copy of said order upon said purchasers, their successors or their as- signs, to retake and resell the mortgaged railroad, equipment, franchises and property, and jurisdiction of this cause is retained for that purpose. (l) This decree was entered in the case of Continental Trust Co. vs. JUDICIAL SALES. 847 Toledo, St Louis & Kansas City R. R., pending in Circuit Court of United States for the Northern District of Ohio. Where order of confirmation may be made by judge in vacation, see Central Trust Co. vs. Sheffield, Etc., Ry., 60 Fed. Rep. 9. In Equity. No. 664. Special Master's Deed (i). The Circuit Court of the United States for the Western District of Tennessee. The Farmers' Loan & Trust Company vs. The Memphis & Charleston Railroad Company, the Central Trust Com- pany of New York and Samuel Thomas. An indenture, made the 26th day of February, 1898, by and between Louis B. McFarland, Special Master, duly appointed in the suits in equity hereinafter mentioned, party of the first part, and Southern Railway Company, and Adrian Iselin, Jr., Mel- ville E. Ingalls, Jr., and John W. Fewell (the said Iselin, In- galls and Fewell receiving this conveyance as joint tenants and not as tenants in common, and hereinafter being, called the "Purchasers"), parties of the second part. Witnesseth : Whereas, on or about the 2d day of August, 1895, the Farmers' Loan & Trust Company, trustee, as complainant, filed its bill of complaint, in equity, in the Circuit Court of the United States of America for the western district of Tennes- see, western division, against the Memphis & Charleston Rail- road Company, a corporation, created by or existing under the laws of the states of Tennessee, Alabama and Mississippi, and the Central Trust Company of New York and Samuel 848 SUITS IN EQUITY. Thomas, as defendants, in which suit in equity it was sought to foreclose the Memphis & Charleston Railroad Company's consolidated first mortgage, dated the 20th day of August, in the year 1877, and upon or about that day duly executed, acknowledged and delivered -by said railroad corporation to said the Farmers' Loan & Trust Company, in which suit it was proposed to sell the whole of the mortgaged property and premises, being the railroads, property, privileges and fran- chises of said the Memphis & Charleston Railroad Company, as more specifically described in said consolidated first mort- gage; and Whereas, such proceedings were had m the said cause that on the 2d day of March, 1897, a decree of foreclosure and sale was entered therein by the said Circuit Court of the United States for the western district of Tennessee, western division, at Memphis, Tennessee, and upon November 24, 1897, a de- cree supplmental thereto was also entered by said court pur- suant to the mandate of the Circuit Court of Appeals for the Sixth Circuit; and Whereas, similar decrees foreclosing such mortgage an- cillary to said decree of said Circuit Court of the United States for the western district of Tennessee, western di- vision, made on March 2, 1897, were subsequently entered on or about the 5th day of April, 1897, in similar suits brought by the Farmers' Loan & Trust Company, complainant, against the said the Memphis & Charleston Railroad Company, the Central Trust Company of New York and Samuel Thomas, as defendants, in the Circuit Court of the United States for the several districts hereinafter mentioned, that is to say: The eastern district of Tennessee, southern division; the northern district of Alabama, northern division ; and the north- ern district of Mississippi, eastern division; and Whereas, in and by the said decrees the said Louis B. Mc- Farland, party of the first part, was appointed Special Master to execute the said foreclosure decrees and to make the sale of property therein provided for and directed; and JUDICIAL SALES. 849 Whereas, in pursuance of such appointment the said Spe- cial Master afterwards, to wit, on the 26th day of February, 1898, after due advertisement and notice of sale, as prescribed in the said decrees, and in said supplemental decree, at public auction at the railroad station upon the railroad of the Mem- phis & Charleston Railroad Company, in the city of Mem- phis and state of Tennessee, on the day and at the hour fixed by said Special Master in his advertisement of sale, in ac- cordance with the request of the solicitors for the complain- ant, and in the manner specified and directed in the said de- crees and in the said supplemental decree, did sell all and singular the railroad, equipment, property and premises, rights, assets, privileges and franchises, which the said Spe- cial Master was directed by the said decrees and supplemental decree to sell, upon the terms and conditions in said decrees and said supplemental decree fully and at large set forth, to which decrees reference is hereby specially and expressly made; and Whereas, at such sale the said Adrian Iselin, Jr., Melville E. Ingalls, Jr., and John W. Fewell became the purchasers of all such railroad and property and franchises, offered and sold as a single parcel, for the sum of two million five hundred thousand dollars ($2,500,000), the said purchasers having made such purchase as joint tenants and not as tenants in common, for the purpose and with the intent of having the title of all the said railroad, property, rights, assets and fran- chises, vested in and held by the Southern Railway Company, a corporation created and existing under the laws of the state of Virginia, by an Act of Assembly, approved February 20, 1894, as to all said railroad, real estate and franchises, within the states of Tennessee and Alabama, and, also, as to all equipment, chattels and choses in action sold, wherever situate, said corporation having complied with all conditions of law precedent to the transaction of business within the said states ; and vested in and held by the Memphis & Charles- ton Railway Company, a corporation to be organized by that 850 SUITS IN EQUITY. name in the state of Mississippi, as to all of the railroad, real estate and franchises, within the state of Mississippi ; and Whereas, the said purchasers, in part discharge of their said bid, have paid to the said Special Master the sum of fifty- thousand dollars ($50,000) in a certified check upon the National Union Bank of New York City, and have also deliv- ered to him the certificate of the Guaranty Trust Company of New York that it holds, subject to his order, and entitling him, or his successor, on surrender thereof to receive the same, 2,257 of the consolidated first mortgage bonds of the Memphis & Charleston Railroad Company for the principal sum of $1,000 each with all unpaid coupons attached to said bonds, out of a total issue of 2,264 of such consolidated first mortgage bonds, to be canceled or credited, as provided in said foreclosure decree, and in said supplemental decree ; and Whereas, on the 26th day of February, 1898, the said Special Master did duly make his report of said sale to the said Circuit Court of the United States for the western dis- trict of Tennessee, western division, that being the court exer- cising original jurisdiction in said suit, which said report, and the said sale, were by decree of said court, entered of record, duly approved and confirmed, subject to the com- pliance by the purchasers with all the terms and conditions of said foreclosure decrees and sale, and the said decree of confirmation; and Whereas, an order has been made in and by said Circuit Court of the United States for the western district of Ten- nessee, western division, authorizing and directing the said Louis B. McFarland, party of the first part, as Special Mas- ter, upon the terms and conditions set out in said decree of confirmation, to sign, seal, execute, acknowledge and deliver a conveyance of all and singular the railroad, property, prem- ises, rights, assets, privileges and franchises so sold to the said purchasers thereof, subject, however, as recited in said decree of foreclosure and said supplemental decree, to a certain stat- utory lien in favor of the state of Tennessee and to the .JUDICIAL SALES. 85 1 mortgages, as set forth in said decree of foreclosure and said supplemental decree, and upon the condition that to the ex- tent that the assets, or the proceeds of assets, in the receiv- ers' hands should be insufficient, such purchasers, their suc- cessors or assigns, should pay, satisfy and discharge (a) any unpaid compensation which should be allowed by the court to the receivers; (b) any unpaid indebtedness and obligations or liabilities which were duly contracted or incurred by the receivers before delivery of possession of the property sold; and (c) also any unpaid indebtedness or liability contracted or incurred by said the Memphis & Charleston Railroad Com- pany in the operation of its railroad, which is prior in lien or superior in equity to such consolidated first mortgage of Au- gust 20, 1877, except such as had been paid and satisfied out of the income of the property in the hands of the receivers, or out of such other assets upon the court adjudging the same to be prior in lien or superior in equity to said mortgage, and directing the payment thereof, no obligation, nevertheless, being imposed upon, or being required to be assumed by, the purchasers to pay or discharge either the statutory lien in favor of the state of Tennessee, or the said first mortgage bonds, or the said second mortgage bonds of the Memphis & Charleston Railroad Company, mentioned and described in said decrees and in said supplemental decree, and subject to which the property was sold; and subject, also to all and singular the terms and conditions in said decree of foreclosure and said supplemental decree set forth, and subject, also, to pay into the registry of the Circuit Court of the United States for the western district of Tennessee, western division, all such sums as had been, or might be, ordered by said court for the pay- ment of such claims and liabilities, which are entitled to pref- erence in payment out of the proceeds of sale prior to the bonds secured by said mortgage of the Memphis & Charleston Railroad Company, and subject, also, to all other claims filed in the said cause, but only when and as the said Circuit Court ai the United States for the western district of Tennessee, 852 SUITS IN EQUITY. western division, should allow such claims and adjudge the same to be prior in lien to mortgage foreclosed in said cause, and in accordance with the order or orders of the court al- lowing such claims and adjudging with respect thereto ; and , Whereas, at the time of said order of the said Circuit Court of the United States for the Western District of Tennessee, western division, this indenture and the form thereof was submitted to, approved by, and filed with, said court; and Whereas, the said purchasers have complied with and ful- filled all the terms and conditions of the said order and de- crees, so far as the same are now ripe for performance; and are entitled to a conveyance of the property so purchased by and confirmed to them : Now, therefore, this indenture witnesseth: That the said party of the first part, to wit : Lxjuis B. McFarland, as such Special Master as aforesaid, for and in consideration of the premises and of the sum of two million and five hundred thousand dollars ($2,500,- 000), paid and to be paid in accordance with the terms of the said decrees, and in consideration that the said parties of the second part, their successors or assigns, will in all respects comply with the conditions of said decrees of foreclosure and sale; Has granted, bargained, transferred, sold and conveyed, and by these presents does hereby grant, bargain, transfer, sell and convey: First. Unto the said Southern Railway Company, its suc- cessors and assigns, forever, the said railroad, real estate and franchises, within the states of Tennessee and Alabama, and also all estate, equipment, personal property and choses in action wherever situate ; including also all income, proceeds of income, bills and accounts receivable, cash and other property received by the said receivers, and all causes of action, and judgments, by them acquired or obtained in the management or operation of the said mortgaged premises, to be embraced in the conveyance thereof or pertaining thereto ; and also any JUDICIAL SALKS. 853 and all property of the said railroad company, appurtenant to the premises, and required for use in connection with or for the purpose of said railroad or the business of said railroad company and vested in or standing in the name of the said receivers, or to which the said receivers in any manner have acquired title ; ( not including, however, the said railroad, real estate, and franchises, within the state of Mississippi, which hereinafter are conveyed to the said purchasers, or to their successors, the Memphis & Charleston Railway Company, their or its successors or assigns), the said property conveyed to the said Southern Railway Company being more particu- larly described as follows, 'hat is to say : All and singular the rights, privileges, interests, franchises, lands, tenements, hereditaments, appurtenances and property, of every description, whether real, personal or mixed, em- braced or included in the said decrees of sale and the sale pursuant hereto, that is to say : The following railroads of the Memphis & Charleston Railroad Company in.the states of Tennessee and Alabama. All and singular the main line of railroad, formerly of the said the Memphis & Charleston Railroad Company, extending from the point of commencement thereof in the city of Mem- phis, in the state of Tennessee, via Corinth, in the state of Mississippi, and Huntsville, in the state of Alabama, to the terminus thereof in Stevenson, in the said state of Alabama, connecting there with the Nashville & Chattanooga railroad, being a distance of two hundred and seventy-two miles, be the same more or less (excepting the portion of said railroad which lies in the state of Mississippi) ; and also the branch of said railroad, situate in the state of Tennessee, known as the Somerville & Moscow branch, extending from Moscow, on the main line, to Somerville, a distance of about fourteen miles, be the same more or less; and also the branch of said railroad, situate in the state of Alabama, extending from Tuscumbia, on the main line, to Florence, a distance of about five miles, be the same more or less, and including the bridge 8S4 SUITS IN EQUITY. across the Tennessee river, near Florence ; and also the Wash- ington street branch, so-called, of said railroad, extending from the depot of said main line in the city of Memphis, through Washington street and Centre Landing, to the Mis- sissippi river, and the depot grounds and wharves on said river, and all the rights and privileges of said railroad com- pany in respect of the use of the streets and wharves and levee on the Mississippi river; and, also, all and singular the right of transportation of the passenger cars and freight cars of the said the Memphis & Charleston Railroad Company on and over the railroad between Stevenson in Alabama and Chattanooga in Tennessee, which said the Memphis & Charles- ton Railroad Company, at the date of the execution of said jnortgage — namely, August 20, 1877, had or was entitled to, or could then, or since then, claim under or in virtue of the contract of the date of June 23 and July 26, 1858, made be- tween the Memphis & Charleston Railroad Company and the Nashville & Chattanooga Railroad Company, and all the rights and privileges whatsoever, for or in respect to the use of, or transportation over, the line of railroad between Stevenson and Chattanooga, now belonging to the Nashville, Chattanooga and St. Louis railway, which the said the Mem- phis & Charleston Railroad Company holds or is in any wise entitled unto, or could, at the date of execution of said mort- gage — namely, August 20, 1877 — or at any time since then, claim, either under or in virtue of the before-mentioned con- tract of June and July, eighteen hundred and fifty-eight, or otherwise, howsoever, together with all and singular the road- way or track of the aforesaid main line of railroad extending from Memphis to Stevenson (except the portion thereof in Mississippi) and of the said several branches respectively, and the superstructure and rails laid or to be laid thereon respec- tively, and all the appurtenances thereof, and all the sidings, turnouts, bridges, wharves, viaducts, culverts, walls, fences, ways and rights of way, depots, station, houses, engine houses, car houses, freight houses, wood houses, depot grounds and JUDICIAL SALES. 855 lands procured, provided, or intended for use for that pur- pose; building and repair shops, machine shops, and lands used , or procured, or intended for sites thereof, and other buildings, structures, lands and improvements whatsoever, leases and leasehold interests, contracts, easements and privi- leges belonging or appertaining to, or used or procured, or designed to be used for, the purposes of or in connection with the said main line of railroad and branches, respectively, or tjie maintenance or operation thereof, or of any part thereof, at the date of the execution of said mortgage — namely, on the 20th day of August, 1877, or at any time thereafter; and also all the locomotives, tenders, passenger cars, baggage cars, freight cars and other cars, and all other rolling stock or equip- ment, and all machinery, tools and implements, rails, chairs and spikes and other materials whatsoever, owned or pos- sessed by the said the Memphis and Charleston Railroad Company, at the date of the execution of said mortgage — namely, on the 20th day of August, 1877 — or at any time thereafter, for the uses or purposes of, or designed for use in connection with, or for the operation, maintenance or rep- aration of, the said main line of railroad and branches re- spectively, or the equipment or appurtenances thereof, any, all the engines, cars and rolling stock or equipment of any kind, machinery, tools, implements, rails and other materials, which now belong or appertain tO' or are in use or on hand, designed for use for the purposes of said main line of railroad and branches, respectively, or any part thereof, or have belonged or appertained to or been in use or on hand, designed for use for the purposes of said main line of railroad and branches, respectively, or any part thereof, at any time or times after the date of the execution of said mortgage — namely, August 20, 1877 — and all the lands and real estate whatsoever, of any and every kind whatsoever, and all improvements thereon, situate in the states of Tennessee or Alabama, respectively, which were owned or possessed by, or which belonged to, the said the Memphis & Charleston Railroad Company at the date 856 SUITS IN EQUITY. of the execution of said mortgage — namely, August 20, 1877 — and also all and singular the rights, privileges and fran- chises whatsoever, which the said the Memphis & Charleston Railroad Company has acquired or become possessed of or entitled unto, since the said date of the execution of said mort- gage, for or in respect of, or for the uses or purposes of, the said main line of railroad and branches respectively, or the operation or maintenance thereof, and also all the tolls and income of the said main line of railroad and branches re- spectively, together with all and singular the tenements, here- ditaments and appurtenances unto the premises aforesaid, or any of them, or any part thereof belonging or in any wise appertaining; and the reversion or reversions, remainder and remainders, rents, issues and profits thereof, and all the estate, right, title, interest, property, possession, claim and demand whatsoever, as well at law as in equity, of the said the Mem- phis & Charleston Railroad Company, of, in and to the same, and every part and parcel thereof, with the appurtenances. Subject, however, to a certain statutory lien in the nature of a mortgage, originally created and existing in favor of the state of Tennessee, and mentioned and described in the said mortgage of August 20, 1877; and also subject to the lien of a certain first mortgage or deed of trust dated May i, 1854, executed by said the Memphis & Charleston Railroad Com- pany to James Punnett, G. B. Lamar and Thomas Feam, as trustees, and also subject to the lien of a certain second mortgage or deed of trust dated January i, 1867, made by said the Memphis & Charleston Railroad Company to Gusta- vus L. Masten, George W. Neal and William C. Rehren, as trustees, said first mortgage and said second mortgage having been ext-ended by certain indentures, both dated September 7, 1880, and being more particularly described in said decrees. Together with all the corporate estate, equity of redemp- tion, rights, privileges, immunities and franchises of said the Memphis & Charleston Railroad Company, and all the tolls, fares, freights, rents, incomes, issues and profits of the said JUDICIAL SALES. 857 railroads, and all interest and claims and demands of every nature and description, and all the reversion and reversions, remainder and remainders thereof, including all the said mort- gaged premises and property, in said decrees directed to be sold, at any time owned or acquired by and now in the pos- session of said the Memphis & Charleston Railroad Company, or the receivers thereof, and including also all income, pro- ceeds of income, bills and accounts receivable, cash and other property received by the receivers, and all causes of action, and judgments, by them acquired or obtained in the manage- ment or operation of the mortgaged premises embraced in this conveyance or pertaining thereto, and also any and all property of the said railroad company appurtenant to the premises and required for use in connection with or for the purposes of said railroad, or the business of said railroad company, and vested in or standing in the name of the said receivers, or to which the said receivers in any manner have acquired title; excepting, however, all such leases and con- tracts sold with the said property as the parties of the second part shall within ninety days after the delivery of this deed elect not to assume and adopt; and Second. Unto the purchasers and to their successor, the Memphis & Charleston Railway Company, when organized, their or its successors and assigns : All and singular the railroad, formerly of the said the Memphis & Charleston Railroad Company, in the state of Mississippi, beginning at a point on the Mississippi state line, near Wenasoga, a point in Alcorn county, upon the northern boundary of Mississippi, and thence running easterly, through Alcorn county and Tishomingo county, to a point upon the eastern boundary of Mississippi, between luka, in said last- mentioned county, and Margerum, in the state of Alabama, being in all about thirty-five miles in length within the said state of Mississippi ; being part of the same railroad referred to in an Act of the Legislature of the state of Mississippi, entitled "An Act to grant the right of way to the Mem- 858 SUITS IN EQUITY. phis & Charleston Railroad Company, and for other pur- poses," approved March i, 1854; A more full and particular description of the property intended to be conveyed by this instrument being contained in said decree of the 2d of March, 1897, and in the supple- mental decree of November 24, 1897, respectively, to which reference is hereby made. To have and to hold, all and singular, the above-mentioned railroads, premises, rights, privileges, interests, franchises, lands, tenements, hereditaments, appurtenances and property, of every description, whether real, personal or mixed, herein conveyed or intended to be conveyed, unto the said Southern Railway Company, its successors and assigns, as to all the rail- road, real estate and franchises, within the states of Tennes- see and Alabama, and as to all the equipment, chattels and choses in action, wherever situate; and unto the said pur- chasers, and their successor, the Memphis & Charleston Rail- way Company, when organized, their or its successors and as- signs, as to all of the railroad, real estate and franchises, with- in the state of Mississippi; and the said Southern Railway Company is, and the said Memphis & Charleston Railway Company, when organized, shall be, hereby invested with the same (the said Southern Railway Company, as to all said railroad, real estate and franchises, within the states of Ten- nessee and Alabama, and as to all said equipment chattels and choses in action, wherever situate ; and the said purchasers, or their successor, the Memphis & Charleston Railway Company, as to all the railroad, real estate and franchises, within the state of Mississippi) as fully and completely as said the Mem- phis & Charleston Railroad Company, one of the defendants in said suit in equity, or said receivers, held or enjoyed, or were, respectively, entitled to hold or enjoy, or were seized of or entitled to, at the time of the entry of the said decree, or at the time of the commencement of said suits, or which said receivers or either of them have since acquired ; freed and dis- charged from the lien and encumbrance of the said mortgage JUDICIAL SALES. 859 or deed of trust foreclosed or barred by the said decrees, and freed from all equity of redemption of said mortgagor, the Memphis & Charleston Railroad Company, and of all equity of redemption and of all other claims of all persons whomso- ever, claiming or to claim by, under or through, the said com- pany, except as mentioned and reserved in said decree, as fully and absolutely as the said Louis B. McFarland, as Spe- cial Master, may or ought, by virtue of said decrees, to bar- gain, sell, release, assign or convey, subject, however, to the said statutory lien in favor of the state of Tennessee and to the said two mortgages, as set forth in said decree of fore- closure, and said supplemental decree, and upon the condition that, to the extent that the assets, or the proceeds of assets in the receivers' hands should be insufficient, the said Southern Railway Company and the said purchasers, its or their suc- cessors or assigns, should pay, satisfy and discharge (a) any unpaid compensation which should be allowed by the court to the receivers; (b) any unpaid indebtedness and obligations ■or liabilities which were duly contracted or incurred by the receivers before delivery of possession of the property sold; and (c) also any unpaid indebtedness or liability contracted or incurred by said the Memphis & Charleston Railroad Com- pany in the operation of its railroad, which is prior in lien or. superior in equity to the consolidated first mortgage of August 20, 1877, except such as has been paid and satisfied out of the income of the property in the hands of the re- ceivers, or out of such other assets upon the court adjudging the same to be prior in lien or superior in equity to said mort- gage, and directing the payment thereof, all payments for any such purpose made by the parties of the second part, their •successors or assigns, in advance of the accounting and dis- charge of the receivers, to be treated as advances, and subject to final adjustment upon such accounting; no obligation, nev- ertheless, being imposed upon, or being required to be as- sumed by, the Southern Railway Company, or by the pur- chasers or their successor, the Memphis & Charleston Rail- 86o SUITS IN EQUITY. way Company, its or their successors or assigns, to pay or discharge either the said statutory lien, or the said first mort- gage bonds, or the said second mortgage bonds, of the Mem- phis & Charleston Railroad Company, hereinbefore referred to, and subject to which the property was sold, and subject also to all and singular the terms, conditions, reservations and obligations in said decree of foreclosure, and said sup- plemental decree and said decree of confirmation, set forth; and the grantees, parties hereto of the second part agreeing to take the property so sold as aforesaid, subject to the perform- ance by them, or by their successors or assigns, of all pending contracts in respect thereof, theretofore lawfully made .by "the receivers, the said grantees, and their successors or 'assigns, having, nevertheless, the right, within ninety days after the completion of the sale and delivery of this deed, to elect wheth- er or not to assume or adopt any lease or contract sold with the railroad and other property and franchises, neither they, nor their successors nor assigns, to be held to have assumed any of said contracts or leases, which they shall so elect not to assume; provided, however, that upon publication by the Special Master, when ordered by the court, as provided in said decree, of a notice, requiring holders of any claims to present the same for allowance, any such claims which shall not be so presented or filed within the period of six months after the first publication of such notice, shall not be enforce- able against the property sold, or against the said grantees, or their successors or assigns; and subject, also, to the pay- ment by said grantees, their successors or assigns, of all such sums in cash as may be required in order to pay all costs and expenses of the sale, the compensation of the special master, end all charges, compensations, allowances and disbursements, payable out of the purchase price bid for the. premises, as the same shall be fixed and allowed hereafter by the court : And subject also to all the conditions and reservations of said decree of sale, and of said supplemental decree, and of said decree confirming said sale, entered in said Circuit Court JUDICIAL SALES. 86l of the United States for the western district of Tennessee, western division, that being the court exercising original juris- diction of said foreclosure suit, including the reservation to said court of the power to retake and to resell the premises ■conveyed, or any parcel thereof, in case the said parties of the second part, their successors or assigns, shall fail to pay any sum required to be paid by them under said decrees within the time specified in said decrees, respectively, after the entry of an order requiring such payment. It is hereby understood and agreed that no personal cove- nant or liability is to be implied from this deed against the said party of the first part as Special Master, except that he has not in his official capacity made any prior conveyance of the property herein mentioned or of any part thereof. And whereas, in order to expedite the recording of this ■deed, eight counterparts thereof are, by order of the Circuit Court of the United States for the western district of Ten- nessee, western division, simultaneously executed, acknowl- edged and delivered by the party of the first part to the parties ■of the second part. Now, therefore, this indenture further witnesseth, that al- ihough eight counterparts are simultaneously executed, ac- knowledged and delivered by the party of the first part to the parties of the second part, to the end that all or any one or more thereof may be recorded, any one or more of such coun- terparts, when executed, acknowledged and delivered, shall severally or collectively be deemed to be an original, and for all intents and purposes be one instrument. In witness whereof, the party of the first part hereto has hereunto set his hand and seal the day and year first above written. Words "payment" to "and," inclusive, in lines 20, 21 and 22 on p. 4, and also in lines 30, 31 and 32 on p. 11, stricken •out before execution. L. B. McFarland, [Seal.'] Special Master. 862 SUITS IN EQUITY. Signed, sealed and delivered in presence of Francis Lynde Stetson. W. A. Henderson. \_OMcial Seal.l H. S. Hayley, Notary Public for the County of State of Tennessee, Shelby, State of Tennessee. Shelby County, ss. Personally appeared before me, H. S. Hayley, a notary pub- lic of the said county of Shelby, in this state of Tennessee, duly and legally appointed, commissioned and qualified within my said county, Louis B. McFarland, the within-named grantor and bargainor, with whom I am personally acquainted, being the same person described in and who executed the foregoing instrument, and he then and there being informed of the con- tents of the conveyance, acknowledged before me that he voluntarily signed, executed and delivered the within and fore- going instrument on the day the same bears date for the pur- poses therein contained; and I, at the same time, at his re- quest, witnessed his execution, signature and delivery of said conveyance and signed my name as one of the attesting wit- nesses thereto. And I hereby certify that I am a duly appointed notary public in and for said county and state; that I was appointed on the 26th day of October, 1894, and that my commission as such notary public expires with the 26th day of October, 1898. Witness my hand and official seal, at office, this 26th day of February, 1898. H. S. Hayley, {Official Seal.'] Notary Public, Shelby County, Tennessee. (i) The foregoing masters' deed is copied from the record in the case of The Farmers' Loan & Trust Co. vs. The Memphis & Charleston R. R. Co., pending in the Circuit Court of the United States for the Western District of Tennessee, and constitutes a part of the reorganiza- tion proceedings, whereby the Southern Ry. acquired the Memphis & Charleston R. R. See Rothschild vs. Memphis & Charleston R. R. Co., 113 Fed. Rep. 476; NE EXEAT. 863 NE EXEAT. No. 665. Motion for Writ of Ne Exeat (i). ICaption.^ Now comes the plaintiff in the above-entitled cause bj'' R. X., his attorney, and moves this honorable court to grant a writ of ne exeat in accordance with the prayer (2) of the bill in this cause. R. X., Attorney for Plaintifif. (1) This motion may be without notice and the writ granted ex parte, Dan. Chan. Practice (6th Am. Ed.) 1706; i Smith Chan. Prac. 580; Bates' Fed. Eq., Sec. 573. (2) The bill must contain a special prayer for a writ of ne exeat before application for it can be made. Eq. Rule 21. [^Caption.] State of - No. 666. Affidavit to Obtain a Ne Exeat (i). County of , ss. I, "W. B., one of the above-named plaintiffs, being duly sworn, deposes and says that the above defendant is actually and justly indebted to the said plaintiffs in the sum of dollars, for [here state the ground and circumstances of in- debtmeni\ ; for the recovery of which the said plaintiffs did, on the day of , file their ^bill of complaint herein 864 SUITS IN EQUITY. against the said defendant; to which said bill the said de- fendant has not yet answered; and, being so indebted, the said defendant has lately declared in the presence of each of the plaintiffs, and informed them, and this deponent verily be- lieves, that he will without delay leave the United States and go to live and reside in parts beyond the seas without these United States and out of the jurisdiction of this court. And this deponent has no doubt, but verily believes, that if the said defendant should be allowed to depart out of this district, the plaintiffs' debt will either be entirely lost to thein, or the recovery thereof greatly endangered. Sworn, etc. W. B. [^Certificate of allowance.^ (i) It is well established that the writ will not issue without a positive affidavit and that an affidavit as to information and belief only will not be sufficient. Gernon vs. Boecaline, No. 5637 Fed. Cas., 2 Wash. C. C. 130; Dan'l Ch. Prac. (6th Am. Ed.) 1706; McDonough vs. Gaynor, 18 N. J. Eq. 249; R. S. Sec 717. No. 667. Order for Writ of Ne Exeat to Issue (i). Upon motion, etc., and upon reading an affidavit of, etc., filed, etc. \if before appearance., and the clerk's certificate of the filing of the plaintiff's bill in this cause on the day of ] ; and the plaintiff by his counsel undertaking, etc. \as to damages\: This court orders that a writ \or, one more writ, or., writs] of ne exeat republica do issue against the said defendant A. B., until this court make another order to the contrary; and the said writ [<7r, writs] is [or, are] to be mtgrked for security in the sum of dollars. (i) The writ may be issued by the Supreme Court or a District or Circuit Court or a justice or circuit judge, R. S. Sees. 716 and 717; Lewis vi. Shainwald, 48 Fed. Rep. 492;; but not by a district judge, Gernon vs. Boecaline, No. 5637 Fed. Cas., 2 Wash. C. C. 130. NE EXEAT. 865 No. 668. Writ of Ne Exeat Republica (i). The United States of America, District of , ss. The President of the United States of America to the Mar- shal of the District of , Greeting: Whereas, it is represented to us in our circuit court of the United States for the district of in equity, on the part of A. B., plaintiff, against C. D., defendant (among other things), that he, the said defendant, is greatly indebted to the said plaintiff, and designs quickly to go into parts without the United States (as by oath made on that behalf appears), which tends to the great prejudice and damage of the said plaintiff. Therefore, in order to prevent this injustice, we do hereby command you that you do, without' delay, cause the said C. D. personally to appear before you, and give sufficient bail or security in the sum of dollars that the said C. D. will not go or attempt to go into parts without the United States without leave of our said court; and in case the said C. D. shall refuse to give such bail or security then you are to commit the said C. D. to our next prison, there to be kept in safe custody until he shall do it of his own accord; and when you shall have taken such security you are forthwith to make and return a certificate thereof to us in our said cir- cuit court of the United States for the district of distinctly and plainly under your hand, together with this writ. [Add teste, as in No. 56.] (i) See Foster's Fed. Prac, pp. 323, 455 e( seq. ; Desty's Fed. Proc, Sec. 237 ; R. S., Sec. 717. See also Beach's Modem Eq. Prac, chapter on ne exeat. 866 SUITS IN EQUITY. No. 669. Bond to Marshal upon a Ne Exeat. Know all men by these presents that we, C. D., of the city of , and E. F. and G. H., of the same place, are held and firmly bound unto H. C, United States Marshal for the district of , in the penal sum of dollars, to be paid to the said H. C, United States Marshal for the district of , as aforesaid, or his assigns. For which payment well and truly to be made we bind ourselves jointly and severally, and our and each of our heirs, executors, and administrators, firmly by these presents. Sealed with our seals, and dated the day of , i8 — . Whereas, the above-named C. D. has been arrested upon a writ of ne exeat issuing out of and under the seal of the circuit court of the United States for the district of , in a certain cause therein pending, wherein A. B. is plaintifi", and the said C. D. is defendant, and is now in custody of the said H. C, marshal as aforesaid, by virtue thereof : Now, the condition of this obligation is such, that if the said C. D. shall not depart from or leave this district of without the permission of the said court, then this obligation to be void ; otherwise to be and remain in full force and virtue. C. D. \Seal?\ E. F. \seal\ G. H. [&a/.] \For acknowledgment and justification of sureties see No. 58.] No. 670. Notice of Motion for the Discharge of Ne ETxeat. \Caption?[ Take notice that this honorable court will be moved before \na7ne judge and couri\, on , the day of in- stant [or, next], at o'clock in the noon^ on the NE EXEAT. 867 part of the defendant, C. D., that the writ of ne exeat republica issued against him pursuant to the order dated the day of , 1894, and the said order, may be discharged with costs, including the costs of this application ; and that the plaintiff may be ordered to pay such costs to the said defend- ant, — If so; and that th,e bond given by the said defendant to the of , pursuant to the said order and writ, may be delivered up to be canceled. And that an inquiry may be made what damages have been sustained by the said defendant by reason of the said order having been made. And that the plaintiff may be ordered, pursuant to his un- dertaking, contained in the said order, to pay to the said defendant, within (one month) after the date of the master's certificate of the result of such inquiry, what shall be thereby certified in respect of such damages. No. 671. Motion to Discharge Writ of Ne Exeat (i). [^Caption.] Now comes the defendant C. D. and moves this honorable court : First. That the writ of ne exeat republica issued against him pursuant to the order dated the day of and the said order may be discharged with costs including the costs of this application: Second. And that the inquiry made by him what damages have been sustained by the defendant C. D. by reason of the said order having been made, and that the plaintiff A. B. may be ordered pursuant to his undertaking contained in the said order, to pay to the defendant C. D., within one month from the date of the Master's certificate of the result of the said inquiry, what shall be thereby certified in respect of such damages. (i) As to the discharge of a writ of ne exeat, see Bates' Fed. Eq., Sec. 575; Daniels' Chan. Prac. (6th Am. Ed.) 1712. 868 SUITS IN EQUITY. No. 672. Order that Writ of Ne Exeat be Discharged on Defendant Giving Security. ICaption.j Upon motion to discharge writ of ne exeat and for leave to go out of the jurisdiction for months, the defendant un- dertaking then to return, it is ordered that upon the defend- ant C. D. giving security in the amount of $ with two sureties, such security to be approved by the court, to answer in such sum as may be found due from him in such cause, the writ of ne exeat republica issued in this cause be discharged ; and it is ordered that the order of the day of be also discharged except so much thereof as ordered that the defendant C. D. pay to the plaintifif as costs of that applica- tion. No. 673. Order that Writ of Ne Exeat be Discharged with Inquiry as to Defendant's Damages. ^Caption.] It is hereby ordered by the court that the writ of ne exeat republica issued against the defendant C. D. pursuant to the order of the ■ day of and the said order be respective- ly discharged with costs including the costs of this application, and that it be referred to B. R., Special Master, to inquire and report what damages have been sustained by the said de- fendant C. D. by reason of the said order dated the day of having been made; and that the plaintiff A. B. pur- suant to his undertaking contained in the said order one month after the date of the Special Master's report of the result of the said inquiry, pay what shall be certified in respect to said damages to the defendant C. D. INJUNCTIONS. 869 INJUNCTIONS. No. 674. Notice of Motion for Preliminary Injunction (i). {Caption.] To R. Y., Counsel for Defendant: Please take notice that on the day of , 1893, at ten o'clock a. m., or as soon thereafter as counsel can be heard, I will move for a preliminary injunction, as prayed in the bill of complaint herein, based on the decisions of the courts in former suits under letters patent No. , on which this suit is brought, and the affidavits of E. F., G. H., and J. K., and the exhibits referred to in said affidavits, a true copy of which is herewith served upon you. R. X., Counsel for Plaintiff. Service accepted this day of , 1894. Y. & Y., Counsel for Defendant. (i) Notice must be served on opposing party or his counsel. See S5th Rule in Equity. No. 675. Affidavit of Service. [If counsel fail to accept the service^ the following affidavit of service may be attached to a copy of the notice served^ State of , County of , ss. J. R. makes oath, and says that he served notice, of which the above is a true copy, together with a copy of the bill of 870 SUITS IN EQUITY. complaint and the accompanying affidavits, hereto an- nexed, on C. D., one of the defendants herein named [or, on counsel for the defendant, as the case may be\ , in the city of , on the day of , 1894. J. R. Subscribed and sworn to before me this day of , 1894. J. N., \Seai:\ {Official Title.] No. 676. Motion for a Preliminary Injunction. [Caption.] Now comes the complainant in the above entitled suit, the A. B. Company, by X. & X., complainant's solicitors, and moves this honorable court to grant a writ of injunction against said defendants and each of them, their agents, attor- neys, clerks, servants and employes, pending this suit, and until the further order of the court, conformable to the prayer of the bill in said case filed. X. & X., Solicitors for Complainant. No. 677. Order Overruling Motion. [Caption.] This cause coming on to be heard upon motion of plain- tiff for a preliminary injunction, and affidavits in behalf of the plaintiff, as well as in behalf of the defendant, and coun- sel for the respective parties having been heard, and the same having been duly considered by the court, it is hereby order- ed, adjudged, and decreed that the said motion be, and the same is hereby overruled at the plaintiff's cost. INJUNCTIONS. 871 No. 678. Restraining Order Granted Prior to Application for Injunc- tion (i). {Caption.] Whereas, in the above cause, a motion for the issuance of a preliminary writ of injunction has been duly filed, for the hear- ing being fixed for one o'clock p. m. on the day of , in the city of , in the Custom House building. Circuit Court room : and it having been made to appear that there is danger of irreparable injury being caused to complainant, before the hearing of said application for the writ of injunc- tion, unless the said defendants are, oendino- such hearing, restrained as herein set forth. Now, therefore, take notice that you, J. C. and the Peoples Telephone Company, defendants herein, your agents, servants and attorneys, and each of you, are hereby specially restrained and enjoined from making any further double connection, directly or indirectly, with the property of the complainants by wires or otherwise until further order of this court in the premises. The question of making the injunction operate against the use of connections already made is reserved until the hearing on the application, when it will be determined whether any injunction should issue. The present order operates against making any more connections. Done at chambers, , p. m., . (i) See R. S., Sec. 918: The issue of a restraining order, which may be granted ex parte, is by the express language of this section made dependent upon the existence of two conditions — the giving of notice •of a motion for an injunction, and an apparent danger of irreparable injury from delay. As to the practice of granting a restraining order pending an application for a preliminary injunction, see Central Trust Co. vs. Wabash, etc., Ry. Co., 25 Fed. Rep. i. 872 SUITS IN EQUITY. No. 679. Order Restraining Certification of Values to Comptroller for Taxation (i). [Caption.] The matter being urgent and not admitting of notice of a motion for. preliminary injunction or such argument or con- sideration as the importance of the question demands, I allow a restraining order commanding and restraining the. defend- ants from certifying or delivering to the comptroller of the state of Tennessee the assessments of complainants' properties mentioned and described and afl&rmed by them and from cer- tifying or delivering in any way to said comptroller the re- sults of their action in respect to the assessments complained of for the years and . This order will stand until an application can be made to Judge Clark, or any other judge authorized to hold the Circuit Court for the district of , for a temporary injunction and granted or refused. But notice will be given and application will be made within ten days from this date and if not made within that time, this restraining order will stand dissolved; but, if so made, within said time, this order will continue until the application thus made shall be disposed of. Done at chambers at '■, this — — day of . (i) See note to No. 678. No. 680. Order Restraining the Construction of a Telephone Line in a Municipality. {_Caption.'\ On reading the bill of complaint herein, it is considered by the court and is now so adjudged and ordered that the defend- ant, J. J., be and he is hereby enjoined and restrained from erecting poles through the streets of , or stringing any wires thereon, or taking any steps to establish a telephone system within the* said city, or endeavoring to induce persons INJUNCTIONS. 873 therein who are now or may become patrons of the complain- ant, to become his patrons, or interfering in any way with the franchise of the complainant or with its profitable use of the same, and from usurping to himself the franchise or using the streets and highways of the city of for the purpose of erecting poles or stringing wires or conducting over said wires the business of a telephone company, or in any way act- ing under the ordinance of the town of passed Febru- ary , a copy of which is attached to the bill of complaint, and from endeavoring to assign or transfer the same to any other person or persons or corporation. This restraining order shall continue in force until a mo- tion can be entered and heard for a temporary injunction and until the further order of the court, and this cause is now set down upon motion of the complainant to grant a temporary injunction in the terms of this restraining order (i), and in the terms of the prayer in the bill of complaint, for the day of , at . And the service, of a copy of this order upon the said J. J. shall be sufficient notice thereof. (i) See note to No. 678. No. 681. Restraining Order against Municipality from Interfering with Construction of Telephone Lines (i). \_Caption.1 Whereas in the above cause, a motion for the issuance of a preliminary writ of injunction has been duly filed and the hear- ing thereof being fixed for the day of , at the Unit- ed States Court room, at o'clock a. m., at . And it having been made to appear that there is danger of irreparable injury being caused to complainant, before the hearing of said application for the writ of injunction, unless the said defendants are, pending such hearing, restrained as herein set forth, therefore complainant's application for 874 SUITS IN EQUITY. such restraining order is granted upon its giving good security in the sum of $500 for making good to the defendants the damages and costs that may be awarded them by reason of the granting of this order. Now, therefore, take notice, that you, the mayor and al- dermen of the city of , defendants herein, your agents, servants, policemen, marshals and attorneys and recorder and each of you are hereby specially restrained and enjoined from interfering in any way or manner with the construction and operation of the complainant's lines or placing its phones and poles, or the stringing of its wires or the further prosecution or arrest of the complainant's laborers: [naming theni], until the hearing upon the said application for a writ of in- junction and the further order of the court in the premises. Done at chambers, , at o'clock p. m. (i) See note to No. 678. No. 682. Restraining Order against a Strike Leader (i). [Caption.'] Whereas, in the above-entitled cause, a motion for the is- suance of a preliminary writ of injunction has been duly filed, the hearing thereof being fixed for the day of ; and it having been made to appear that there is danger of irreparable injury being caused to complainant before the hear- ing of said application for a writ of injunction unless the said defendant is, pending such hearing restrained as herein set forth, therefore complainant's application for such restrain- ing order is granted. Now, therefore, take notice that you, F. P., defendant herein, are hereby restrained individually or in combination with others from inciting, encouragping, ordering, or in any manner causing the employes of the receiver herein, to leave his employ, with intent to interfere with and obstruct the op- eration of the railroad in his charge for the purpose of com- INJUNCTIONS. 875 pelling said receiver to break his contracts with the Pullman Car Company and not to carry said cars in his trains. Dated . (i) See note to No. 678. No. 683. Order Modifying Restraining Order. [Caption.] This cause coming on to be heard upon the motion of de- fendants to modify the temporary restraining order heretofore granted in the above entitled cause, and being argued by coun- sel, and the court being advised thereon doth find that said motion is in part well taken, Wherefore, it is ordered that, the first clause of said order be and the same hereby is modified so as to read as follows : From' in .any manner interfering with the persons in the employ of complainant and from in any manner interfering with any person who may desire to enter or to remain in the employment of complainant, whether under the pretense of persuasion or by way of threats, violence, insults, intimidation or other means calculated or intended to prevent such persons from entering into or continuing in the employment of com- plainant, or to influence or induce such persons not to enter into or leave its employment. And it is further ordered that said temporary restraining order as modified hereby, continue in force until the further order of the court in that regard. No. 684. Order of Reference to Master of Motion for Injunction to Report Facts. [Caption.] This case was heard at chambers in the city of , on the day of , before C. D., United States district 876 SUITS IN EQUITY. judge, upon the bill, demur and answer, and upon plaintiff's application for injunction upon consideration of which upon which grounds, which seem to the court sufficient, the appli- cation for injunction is continued until the 2d Monday in next, being the day of at the United States court room in the city' of . Pending said application it is ordered that the preparation of the case for hearing proceed with all possible speed, and to that end it is further ordered that J. N., because of special fitness and qualification to deal with matters of this character is appointed Special Examiner and Master, and is directed to inquire, hear proof and report whether or not the present location and construction of com- plainant's improvements obstruct the streets of the defend- ant city in their primary use for the purpose of travel, and if so, what modification should be made in the restraining order permitting the city to regulate the manner of such con- struction and improvements, and will also inquire upon proof, and report whether the mayor and aldermen of the city of , as a body, and regularly acting as such, object to the use of the streets for purposes of constructing and operating a telephone within the defendant city as the complainant pro- poses to do. For the purpose of such inquiry, said examiner and master will go to the defendant city at a time and place fixed by him of which notice shall be given, and will hear such proof as may be offered, provided that the time fixed and within which proof must be taken shall be such as to allow the report on the matters herein on or before the second Mon- day of September. Until the coming in of said report, and until the further hearing of the application for injunction all questions are reserved, and the restraining order hereto al- lowed is continued until modified or until the date above set for the hearing of the application for injunction. INJUNCTIONS. 877 No. 685. Report of Special Master on Motion for Injunction Being Referred. [Caption.] To the Honorable Judges of said Court: The undersigned Special Master was by an order made on the day of — ■ — , directed " to inquire, hear proof and i;eport whether or not the present location and construction of complainant's improvements obstruct the streets of the de- fendant city in their primary use for the purpose of travel, and, if so, what modification should be made in the restrain- ing order permitting the city to regulate the manner of such construction and improvements, and will also inquire upon proof, and report whether the mayor and aldermen of the city of , as a body, and regularly acting as such, ob- ject to the use of the streets for purposes of constructing and operating a telephone within the defendant city as the ■complainant proposes to do. For the purpose of such in- quiry, said examiner and master will go to the defendant city at a time and place fixed by him of which notice shall be given, and will hear such proof as may be offered, provided that the time fixed and within which proof must be taken shall be such as to allow the report on the matters herein on or before the second Monday of September," and pursuant to said order ■of reference he arranged with the parties for a date upon which to take proof at and upon that date proceed-. ed to said city of , and in the presence of solicitor for complainant and solicitors for defendant proceeded to take proof and said depositions so taken was left at in or- der that defendant might prepare some exhibits called for in the .depositions and the same was to be forwarded to the un- dersigned, but in some way the depositions have been lost or misplaced, except that of T. S., which is herewith filed. However, I do not think the loss is material in the view I take of the matter referred to me. I find and report that the present construction or location of complainant's im- 878 SUITS IN EQUITY. provements are in the main as convenient as could be expected. Defendant offered to introduce proof that certain poles in the suburbs or rather near the outskirts of the city were badly located for the convenience of the public and assuming this to be true the complainant then and there agreed that it would change the location of any of its poles on the request and un- der the direction of the city authorities, limiting them, how- ever, so that they might not be compelled to put their lines on another street or streets, and regarding this as binding on the complainant this branch of the inquiry was not further pur- sued. The undersigned does not think that complainant has intentionally or wilfully placed its poles so as to inconvenience the traveling public. I further find and report that the city of did regu- larly employ counsel to contest the right of complainant to build its lines upon the streets of said city. The proof showed that there had been a contested election for mayor in the city of and the matter is still in litigation, but it is further shown that counsel was employed by the city and board of the city of before the inauguration of the new board of mayor and aldermen and no contrary action hav- ing been taken there remains no sort of doubt of the regular- ity and legality of Messrs. X.»& X. and Messrs. Y. & Y. rep- resenting the board of mayor and aldermen of the city of . All of which is respectfully submitted this day of • J. N., Special Master and Examiner. No. 686. Order Refusing Injunction and Vacating Preliminary Re- straining Order. [Caption.] This cause came on to be heard on the application of. the complainant for an injunction and upon the bill of complaint, the afifidavits of complainant and defendants and the argu- INJUNCTIONS. 879 ments of counsel. And the court being fully advised in the premises, finds that the complainant is not entitled to the re- lief prayed for in its bill, and tRat the preliminary restrain- ing ordpr heretofore issued should be vacated. It is therefore ordered and decreed that the applicatibn of complainant for an injunction herein be and the same is hereby refused, and the preliminary restraining order here- tofore issued herein, be, and the same is hereby vacated. No. 687. Decree Denying Injunction under Sherman Anti-Trust Act. [Caption.^ This cause came on to be heard upon the bill of the United States, the demurrer and answer of the defendants, the affi- davits filed by plaintiff and defendants, from all of which the court was of opinion that the plaintiff was not entitled to the injunction prayed for; that the merits of the petition were fully met and denied by the answer, and were not sus- tained by the proof, the court being of the opinion that the association between defendants was not a contract or combin- ation in restraint of trade, or monopoly of trade and com- merce, under the Act of Congress of July 2, 1890. It was therefore ordered, adjudged and decreed, that the petition filed against the defendants be dismissed, and that petitioner pay the costs of this cause. No. 688. Order to Show Cause why Injunction should not Issue, etc. Upon reading the bill of complaint herein and the affi- davits of G. R. and S. P., and on motion of R. X., solicitor for the plaintiff, it is hereby ordered this day of , 1894, that the defendant show cause, if any he has, before the judge 880 SUITS IN EQUITY. of said court at , in the city of , district of , on the day of , 1894, at ten o'clock a. m., or as soon as counsel can be heard, why the injunction should not issue pursuant to the prayer of said bill. No. 689. Order Allowing Injunction to Restrain Collection of Taxes. [Caption.] On motion of the plaintiff by its attorneys, after due notice given to the defendant, and good cause being shown therefor, it is ordered that on an undertaking being given, in the sum of $ with sureties to the approval of the clerk of this court, a preliminary writ of injunction issued herein, restrain- ing and enjoining said defendant, R. S., as treasurer of the county of , and state of , and his successors in of- fice, from collecting or attempting to collect from the plain- tiff or from its individual shareholders named in said bill, by distraint or otherwise, any of the taxes named in the bill, as the same stand charged upon the duplicate of county, ex- cept that said respondent is hereby given authority without prejudice to his rights in the premises, to receive from the plaintiff $ on the taxes due December , and $ due June , being the taxes by said plaintiff's bill, admitted to be justly due from it and its individual shareholders to said defendant, and that said writ remain in force until the fur- ther order of this court. No. 690. Order Granting an Injunction against Municipality Interfer- ing with Telegraph Poles, etc. [Caption.] On reading the petition filed herein , alsO' the affida- vits and exhibits filed herein by and on behalf of the parties INJUNCTIONS. 88l hereto respectively, to wit, the complainant and the defend- ants, also after arguments made and briefs filed on behalf of complainant and defendants by their respective counsel, and also upon due consideration, the court' finds that the com- plainant has proposed and still proposes itself to establish and maintain in the city of , a local district telegraph system, and to operate and maintain the same through its own servants and agents, and that said complainant has proposed . and still proposes to do so through the use of its own wires and other mechanical apparatus necessary to be placed and used therefore upon its poles and within its conduits above and below the surface and within the boundaries of the streets, alleys, highways and other public grounds of the city of , without interference. with the ordinary travel thereon. It is therefore ordered that the defendants, and each of them, and the officers and agents of every character of the city of , be, and they hereby are, enjoined until further order of court, from preventing or interfering with complainant, or any of its officers or agents, replacing, maintaining or using, any of the wires or other mechanical apparatus or instru- mentalities which have heretofore been cut or otherwise sev- ered or disconnected and removed by any of defendants, or from preventing or interfering with complainant or its of- Ificers or agents placing and maintaining or using the wires and other mechanical apparatus or instrumentalities upon complainant's poles and within its conduits within the bound- aries of any of the streets, alleys, highways or puolic grounds of said city of , so far as such wires, mechan- ical apparatus or instrumentalities are necessary for the full and complete operation of such district telegraph system with- in said city; and said defendants, and each of them, and the officers and agents of every character of said city of , are further enjoined from cutting, breaking, destroying, mu- tilating, or otherwise interfering with, any such wires, me- chanical apparatus or instrumentalities, or from severing or disconnecting any of them, whether the same be upon com- 882 SUITS IN EQUITY. plainant's poles, or within its conduits, or elsewhere, within said city, and are also further enjoined from obstructing or interfering with complainant itself, through its own officers and agents, in carrying on and conducting a district tele- graph system within said city. No. 691. Order Granting Injunction against Telephone Company. The Circuit Court of the United States for the District of Equity. A. B. Telephone Company vs. The People's Telephone Company. J No. Whereas, in the above entitled cause an application for is- suance of preliminary writ of injunction was duly filed and set down for hearing before the Hon. C. D., judge of the District Court of the United States for the Division of the District of , on the day of . Notice of such application to be given to the defendants People's Telephone Company, and J. C. ; and the parties now appearing by their solicitors, being heard upon said application, and it appearing that cause exists for the granting of writ of injunction pend- ing final hearing of this cause as prayed for. It is therefore ordered that defendants. People's Telephone Company, and J. C, their agents, servants and attorneys, be and they are hereby, strictly restrained and enjoined from making any further connections by wires, switches, instru- ments or any other devices of any kind or character, directly or indirectly, or furnishing material for the same, or advis- ing, showing or directing any other parties how to make the same with the property of the complainant, as complained of in the bill to which reference is made. And they, and each of them, are hereby restrained, in- hibited and enjoined from the further use of the connections INJUNCTIONS. 883 heretofore made that are now being- operated and maintained by wires and material furnished by the defendant company, and J. C, and are inhibited and restrained from furnishing for use wires, instruments or other devices connected or to remain connected, as specificially prayed for in the bill of complaint, until further orders of the court in the .premises. No. 692. Order Granting an Injunction against Chief Executive of a ■Labor Union (i). ICaption.] On application of the complainant, and the filing of the second amendment to the bill of complaint and accompany- ing affidavits, and its appearing to the court that serious, irrep- arable and imniediate damage will ensue unless a temporary restraining order is allowed as prayed for in said amendment and the motion filed therewith. It is ordered that the defend- ant Peter M. Arthur do forthwith in the manner customary and usual according to the practice of the Brotherhood of Locomotive Engineers of giving information to its members, vjause to be made known and published that the law, by-law, rtile or regulation of said brotherhood, requiring its members to refuse to handle cars of the Toledo, -Ann Arbor & North Michigan Railway Company is not in force or effect against said company, and that Jasper W. Watson made a defendant herein do forthwith cause to be made known and published to the locomotive engineers in the employment of the Lake Shore & Michigan Southern Railway Company, who are members of said brotherhood in the usual way in which ac- cording to the practice of said brotherhood, information is disseminated among the members of said organization that the law, rule, regulation or by-law of said brotherhood re- quiring its members to refuse to handle cars of the Toledo, 884 SUITS IN EQUITY. Ann Arbor & North Michigan Railway Company is not in force or effect against said company. And also that Peter M. Arthur and said Jasper W. Watson do forthwith file with the clerk of this court for inspection by the court a copy of such by-law, rule or regulation so gov- erning the actions of the members of the said brotherhood re^ quiring its members to refuse so to handle the cars and freight of said The Toledo, Ann Arbor & North Michigan Railway Company. Ordered, that a temporary restraining order be issued as prayed for in the said amendment to the bill, and the motion filed therewith leave to the defendants or any of them to move to dissolve the same, hearing to be had on one day's notice to the complainant's solicitor. Comes complainant and moves for an injunction pending the hearing of the issues herein and accordingly Monday, March 27th, at 10 o'clock a. m., is set for said hearing. No- tice of same will be served on all defendants. (1) This order was entered in Toledo, Etc., R. R. Co., vs. Penn- sylvania Co., 54 Fed. Rep. 730. No. 693. Order Enjoining Striking Workmen from Interfering with Business (i). The Circuit Court of the United States, for the District of , Division. The A. B. Company, a corporation, organized under the laws of the State of , Complainant. vs. C. D., E. F., G. H. [naming all the. defendants against whom injunction is granted"], Defendants. Now, on this day comes the complainant, by its counsel, and having filed its bill of complaint, moved thereon, and upon the affidavits of R. T., W. B., and others, filed in this INJUNCTIONS. 885 cause, for an injunction against the defendants, restraining them, and each of them, as prayed for in said bill of com- plaint. And thereupon the principal defendant. Shilling, came by his counsel, R. S., and asking a postponement of said motion, it is ordered that said application for postponement be, and the same is hereby sustained, and the further hearing of said motion stand over to the day of , A. D. , but in the meantime, and until it is otherwise ordered and de- creed, that the said defendants named in the bill, are and each of the^ is ordered, commanded and enjoined from in any man- ner impeding, hindering, obstructing, or interfering with any of the business of the complainant in the operation of any of its works in the city of , or elsewhere, and from en- tering upon the grounds or premises of said company against its wish for the purpose of impeding in any manner its busi- ness or interfering therewith; and the said defendants are, and each of them is, also ordered, commanded and enjoined from compelling or inducing or attempting to compel or in- duce, by use of threats or intimidation of any sort, or fraud or deception or violence, any person to leave the employment of said company, or not to enter its employ if desirous of doing so, and from doing any act or thing whatsoever by any of the above named means or methods in furtherance of a purpose to impede the business of the said company, or to impede any of its officers or employes in the free and unhindered conduct and control of said company's business; and said defendants are, and each of them is, enjoined from in any manner what- soever ordering, directing, aiding, counselling, assisting or abetting any person, company or organization to do, or cause to be done, any of the things aforesaid. And the said indi- vidual defendants above named are, and each of them is, or- dered, commanded and enjoined to desist and abstain from congregating at or near the premises of said company with' the purpose, and in such manner as to intimidate or to ob- struct, surround or impede in a manner calculated to intimi- 886 SUITS IN EQUITY. date, or for that purpose, any of the employes of said com- pany, or persons seeking employment from it in going to, re- maining at or coming from the premises of said company, and said defendants are, and each of them is, enjoined from in any manner interfering with or molesting any person or persons, who may be employed by or be seeking employment of said company, in the operation of its said business, and the said individual defendants are, and each of them is hereby enjoined and forbidden, either singly or in combination with others, from picketing, guarding, obstructing, impeding or besetting the streets, alleys and approaches of the premises of the said company with the purpose and in such manner as to intimi- date, threaten, impede, obstruct, surround or coerce any of the employes of said company, or persons seeking employment of said company, and all of said individual defendants are, and each of them is, enjoined from in any manner interfering with such persons in going to or from, or in remaining at, the works or place of business of said company, and from in- terfering with any such persons anywhere because of such persons being in the employment of complainant, or of their seeking to be employed by it, or because such persons failed or refused to join in this present strike, ordered May . And said defendants are, and each of them is, enjoined and restrained from going, either singly or collectively, to the homes, boarding-houses or places of habitation of employes of complainant, or any of them or of persons seeking its em- ployment, with the purpose of intimidating or coercing any or all of them to leave the employment of the complainant, or from entering complainant's employment, and as well from intimidating or threatening in any manner the relatives, wives and families of said employes at their said homes or else- where. And it is further ordered that this order shall be in force and binding upon each of the defendants, and all of them named in the bill, from and after service upon them of said order by delivering to them a copy, or by reading the same to INJUNCTIONS. 887 them, and shall be binding upon defendants whose names are alleged to be unknown, from and after publication thereof by posting or printing, and shall be binding upon all defend- ants, and all other persons whatsoever, from and after the time they severally have knowledge of the allowance of this order. Hereof fail not under the penalty of the law thence en- suing. Witness the Honorable Melville W. Fuller, Chief Justice of the United States, this day of , A. D. , and in the year of the Independence of the United States of America. B. R., Clerk of the Circuit Court of the United States for the District of . ISed.'] (i) Arthur vs. Oakes, 63 Fed. Rep. 310; 11 C. C. A. 209, 25 L. R. A. 414 ; Oxley Stave Co. vs. Coopers' International Union, 72 Fed. Rep. 695 ; Elder vs. Whitesides, 72 Fed. Rep. 724 ; Casey vs. Cincinnati Typographical Union, 45 Fed. Rep. 135, 12 L. R. A. 193 ; Consolidated Steel & Wire Co. vs. Murray, 80 Fed. Rep. 811 ; Mackall vs. Ratchford, 82 Fed. Rep. 41. No. 694. Order of Injunction Extended. [^Caption.'] On motion of complainant and upon affidavits filed by it in" this cause, the order of injunction heretofore, to wit, on August 29, 1900, made by Judge Thompson, is hereby ex- tended until September 25, 1900, when the court. Judge Clark sitting, will hear the cause for further extension of such order of injunction and for additional relief as prayed in the bill and petition herein, and the injunction order this day so extended shall continue thereafter until further order is made herein by the court. 888 SUITS IN EQUITY. No. 695. Order for Preliminary Injunction in a Patent Suit (i). This cause having come on to be heard on motion of plaintiff for a prehminary injunction, and on- reading and filing notices of motion for an injunction herein and proof of service thereof, and the affidavits on behalf of the plaintiff annexed thereto, and on reading and filing affidavits on behalf of the defendant, and counsel for defendant as well as for the plaintiff have been heard, and the same having been duly considered by the court, and it appearing that letters patent of the United States No. , were issued in due form of law on the day of , for an improvement in [hobby-horses], to A. B., and that the said defendant, C. D., has infringed on the rights secured by the aforesaid let- ters patent by making and selling to others [hobby-horses] embodying the invention set forth in said patent contrary to form of the statute in such case made and provided. Now, therefore, it is hereby ordered, adjudged, and de- creed that a preliminary injunction be issued pursuant to the prayer herein, strictly commanding and enjoining the defendant, C. D., his clerks, agents, servants, workmen, and attorneys, under the pains and penalties which maj' fall upon them, and each of them, in case of disobedience, that they forthwith, and until the further order, judgment, and decree of this court, desist from making, using, and selling any [hobby-horses] as described and claimed in the said letters patent. (i) As to injunction generally, see Foster's Fed. Prac, Sec. 205 ef seq. , Beach's Modern Eq. Prac, 753 ei seq. When preliminary in- junctions are grantable in patent cases, see Robinson on patents, Sec. 1169 e/ seq., and cases cited in notes. INJUNCTIONS. 889 No. 696. Preliminary Injunctioa to Restrain the Infringement of a Patent,_ [Caption.^ The> President of the United States to C. D., and his clerks, agents, attorneys, servants, and workmen, greeting. Whereas, it has been represented to us in the circuit court of the United States for the district of , that letters patent No. were issued in due form of law on the day of , for an improvement in [hobby-horses] to A. B., and that you, the said C. D., have infringed the rights se- cured by the aforesaid letters patent by making and selling to others [hobby-horses] embodying the invention set forth and claimed in the said letters patent, contrary to the form of the statute in such cases made and provided : Now, therefore, you, the said C. D., your clerks, agents, attorneys, servants, and workmen are strictly commanded and enjoined under the pains and penalties which may fall upon you, and each of you, in case of disobedience, that you forth- with, and until the further order, judgment, and decree of this court, desist from making and selling any [hobby-horses] embodying the invention of said letters patent, substantially as described and claimed in the said letters patent. iAdd teste. See No. 56. J No. 697. Order Refusing Injunction in a Patent Suit upon Defendant Giving Bond. \_Caption^ And now, this day of , 1893, the above cause having come on to be heard on the day of , on mo- tion of plaintiff for a preliminary injunction in accordance with the prayer of the bill in the above-entitled cause, and upon affidavits and exhibits filed by the plaintiff and the de- fendant, and having been argued by counsel for the respec- tive parties, and the court having fully considered the same, the motion is overruled at the cost of the plaintiff, but it is 890 SUITS IN EQUITY. ordered that the defendant give bond in the sum of dollars to the plaintiff for the payment of any profits or damages that may be decreed against it in this cause for the infringement of the patent sued on (between the date of this order and the final decree) ; and it is further ordered that if the defendant fails to execute and file with the clerk of this court such bond within twenty days from the date of this en- try, plaintiff may renew said motion. It is further ordered that the defendant keep an account of all sales of [chimneys] manufactured and sold, or sold by him like the exhibits marked , to be produced when called for by the court. No. 698. Bond in Lieu of Preliminary Injunction in a Patent Suit. [Caption.'] The United States of America, for the District of , ss. Know all men by these presents, that C. D., as principal, and E. F., as surety, are held and firmly bound unto A. B. in the sum of dollars, to the payment of which they bind themselves and each of them, their heirs, executors, and ad- ministrators, firmly by these presents. Sealed with our seals, and dated this day of , 1894. The condition of the above bond is such, that whereas in accordance with an order of the circuit court of the United States within and for the district of , in the case wherein A, B. is plaintiff and C. D. is defendant, the said C. D. executed a bond in the sum of dollars, to pay the plaintiff A. B. such sum as may, upon final hearing, be decreed in his favor by reason of infringement of the patent sued on committed between the date of the order of said court and the final decree herein, in the said cause. Now, if the said C. D. shall abide the decisions of the said court, and pay all moneys and costs which shall be attached INJUNCTIONS. 891 against him in this cause, then these presents shall be void; otherwise to remain in full force. C. D. [Seal.l E. F. [Seal.] \_For acknowledgment and justification of sureties see No. 58.] No. 699. Writ of Injunction (General Form) (i). The United States of America, District of , ss. The President of the United States of America to C. D., Greeting : Whereas, A. B., citizen of the state of , has filed on the chancery side of the circuit court of the United States for the district of , a bill against C. D., and has ob- tained an allowance for an injunction, as prayed for in said bill. Now, therefore, we having regard to the matters in said bill contained, do hereby command and strictly enjoin you, the said C. D., [sei forth from doing what he is re- strained^ also the names of all persons so restrained^ ] which commands and injunctions you are respectively required to observe and obey, until our said circuit court shall make further order in the premises. Hereof fail not, under penalty of the law thence ensuing. \^Add teste. See No. 56.] (l) Any injunction to be effective should be served personally upon the persons to be enjoined, but this is not necessary when the party to be en- joined has actual notice that the injunction has been granted. Ex parte Lennon, 166 U. S. 548; Ulman vs. Ritter, 72 Fed. Rep. 1000; affirmed 78 Fed. Rep. 222, 24 C. C. A. 71 ; In re Gary, 10 Fed. Rep. 622 ; Toledo, etc., R. Co. vs. Penn. Co. 54 Fed. Rep. 746, 19 L. R. A. 395 ; Stateler vs. Calif. Nat'l Bank, 77 Fed. Rep. 43 ; U. S. v. Sweeney, 95 Fed. Rep. 434 : 892 SUITS IN EQUITY. No. 700. Marshal's Return of Writ of Injunction. Received this writ at , on the day of , and on the same day I served the within named The C. D. Manu- facturing Company by leaving a true copy of this writ, with all the endorsements thereon, at the usual place of residence of P. J., president of said company, placing same in the hands of an adult member of his family; and on the same day I served said company by leaving a true copy of this writ with all the endorsements thereon at the usual place of residence of T. O., secretary and treasurer of said company, placing same in the hands of his son K. W. And on the same day I served the said The C. D. Manu- facturing Company by handing a true copy of this writ with all the endorsements thereon to H. G., superintendent of said company personally. S. R., U. S. Marshal. By L. J., Deputy. No. 701. Injunction to Restrain Certification of Values to Comptroller for Taxation. The President of the United States of America to the Mar- shal of the District of , Greeting: ■ Whereas, a decree was rendered by the Circuit Court of the United States for the District of and thereafter, to wit, on , entered in the clerk's office of said court, wherein it is decreed that E. F., governor, G. H., treasurer, and J. K., secretary of state, ex-oMcio Board of Equalization shall not deliver or certify to the comptroller of the state of the valuation fixed by them upon the property of the complainant, the A. B. Company, in a suit in equity pending in said court against them, in , for taxation, for the years and , as shown and set forth in said bill and . INJUNCTIONS. 893 from certifying and delivering said assessment or any record thereof to the said comptroller, etc. Therefore you will make known unto the said E. F., G. H; and J. K., governor, treasurer and secretary of state, re- spectively. Board of Equalization, and enjoin them, their agents, servants, clerks, and attorneys from certifying or de- livering said valuation, or said assessment, or any record thereof, to said comptroller of the treasury of the state of This you will in no wise omit and due return make hereof of how you have executed this writ to the April term of our said court, the of . Witness, the Hon. Melville W. Fuller, chief justice of the United States, this the day of , and of American Independence the one hundred and — — year. B. R., Clerk of the Circuit Court of the United States for the District of . No. 702. Injunction Restraining a Telephone Company Connecting its Instruments with Those of Rival Company. The President of the United States to The People's Telephone Company and J. C. ; and to their counselors, attorneys, so- licitors and agents, and each and every of them — Greet- ing : Whereas, The A. B. Telephone Company has lately filed an original bill of complaint in said Circuit Court of the United States at , against you, the said People's Tele- phone Company and J. C, to be relieved touching the mat- ters set forth in said bill, in which it is charged that your act- 894 SUITS IN EQUITY. ings and doings in the premises are contrary to equity and good conscience ; and whereas, the Honorable C. D., judge of the District Court of the United States, in said District, has ordered that an injunction issue, as prayed by complainant. Therefore, in consideration of said fiat, and of the partic- ular matters in said bill set forth, you, the said People's Tele- phone Company and J. C, and the persons before named, and each and every of you, are hereby strictly commanded and enjoined, under the penalty of a contempt of court, that you do absolutely desist and refrain from making any further connections by wires, switches, instruments or any other de- vices of any kind or character, directly or indirectly, or fur- nishing material for the same, or advising, showing or direct- ing any other parties how to make the same with the prop- erty of the complainant, as complained of in the bill to which reference is made. And you, and each of you, are hereby restrained, inhibited and enjoined from the further use of the connections hereto- fore made that are now being operated and maintained by wires and material furnished by the defendant company, and J. C, and are inhibited and restrained from furnishing for use wires, instruments or other devices connected or to re- main connected, as specifically prayed for in the bill of the complainant, until the further order of the said court in the premises. Witness the Honorable Melville W. Fuller, chief justice of the Supreme Court of the United States, at , in said District, this day of . ISeal.l B. R., Clerk of the Circuit Court of the United States for the District of . INJUNCTIONS. 89s No. 703. Writ of Injunction against Chief Executive of Labor Union. The President of the United States of America, to Peter M. Arthur — Greeting : Whereas, the Toledo, Ann Arbor & North Michigan Rail- way Company, citizen of the state of Michigan, has filed on the chancery side of the Circuit Court of the United States, within and for the Northern District of Ohio, a bill against the Pennsylvania Company, the Wheeling & Lake Erie Rail- way Company, the Lake Shore & Michigan Southern Rail- way Company, the Michigan Central Railroad Company, the Cincinnati, Hamilton & Dayton Railroad Company, the Co- lumbus, Hocking Valley & Toledo Railway Company, the Toledo & Ohio Central Railway Company, the Cincinnati, Jackson & Mackinaw Railway Company, Peter M. Arthur and others, and has obtained an allowance of an injunction, as prayed for in said bill, from Honorable William H. Taft, judge of said court. Now, therefore, we having regard to the matters in said bill contained, do hereby command and strictly enjoin and restrain you, the said Peter M. Arthur from issuing, promul- gating, or continuing in force any rule or order of any kind under the rules and regulations of the association known as the Brotherhood of Locomotive Engineers or otherwise, which shall require or command any employes of any of the defendant railway companies herein to refuse to receive, han- dle or deliver any cars of freight in course of transportation from one state to another, from and to the Toledo, Ann Ar- bor & North Michigan Railway Company, or from refusing to receive or handle cars of such freight which have been hauled from the railroad of said Toledo, Ann Arbor & North Michigan Railway Company, and also from in any way, di- rectly or indirectly, endeavoring to persuade or induce any employes of the railway companies whose lines connect with the railroad of said Toledo, Ann Arbor & North Michigan 896 SUITS IN EQUITY. Railway Company not to extend to said company the same facilities for interchange of interstate traffic as are extended by said companies or other railway companies. Which commands and injunctions you are respectfully re- quired to observe and obey, until our said Circuit Court shall make further Order in the premises. Hereof fail not, under penalty of the law thence ensuing. Witness, the Honorable Melville W. Fuller, chief justice of the United States, this 5th day of April, A. D. 1893, and in the 117th year of the Independence of the United States of America. Irvin Belford, Clerk. ISeaLI By Ford Belford, Deputy Clerk. Said writ was returned to the clerk's office of said court and filed on April 10, 1893, having the following endorsement thereon, to wit : Northern District of Ohio, ss. On the 7th day of April, A. D. 1893, ^t Cleveland, Ohio, I made due service of this writ upon the within named Peter M. Arthur by delivering to him a true and certified copy thereof. W. C. Haskell, U. S. Marshal. By B. F. Seymour, Deputy. Service, .... $2 00 Copy 50 Expenses ... 25 $2 75 (i) This writ of injunction was issued and served on Peter M. Arthur, chief of Brotherhood of Locomotive Engineers, in the case of Toledo, Etc., R. R. Co., vs. Pennsylvania Co., 54 Fed. Rep. 730. No. 704. Injunction Bond. The United States of America, District of ss. INJUNCTIONS. 897 Know all men by these presents, that C. D., E. F., and G. H. are held and firmly bound unto A. B. in the sum of dollars, to the payment of which they bind them- selves, each for himself andj his heirs, executors and admin- istrators firmly by these presents. Sealed with their seals and dated this day of , 1894. The condition of the above obligation is such, that whereas, A. B., citizen of the state of , having filed on*the chan- cery side of the circuit court of the United States for the district of a bill against the said C. D., and having obtained an allowance of an injunction, as prayed for in said bill, from said court. Now, if the said C. D. shall abide the decision of said court, and pay all moneys and costs which shall be adjudged against him in case the said injunction shall be dissolved, then these presents shall be void ; other- wise to remain in full force. C. D. [Seal.] E. F. [Seal] G. H. [Seal.] [Add acknowledgment and justification of sureties. See No. 58.] No. 705. Motion to Modify Injunction (i). [Caption.'] Now comes the defendant by its counsel and moves the court to modify the injunction heretofore granted in this cause in the following respects, to wit : [here state the modi- fication desired.^ R, Y. (i) This motion should regularly be presented to the judge who granted the injunction. See Klein vs. Fleetford, 35 Fed. Rep. 98; Westerly Water Works vs. Westerly, 77 Fed. Rep. 783. 898 SUITS IN EQUITY. No. 706. Motion to Dissolve Injunction (i). [Caption.] Defendant, C. D., now moves this honorable court to dis- solve the temporary injunction or restraining order granted in this case on the ground that this defendant has filed herein a good and sufficient answer under oath. X. & X., Attorneys for Defendants. We have notice of the above motion. Y. & Y., Attorneys for Plaintiff. (i) A motion to dissolve an injunction is regularly presented to the judge, who granted the injunction. Klein vs. Fleetford, 35 Fed. Rep. 98; Westerly Water Works vs. Westerly, 77 Fed. Rep. 783. The motion should be supported by affidavits. No. 707, Motion to Dissolve Preliminary Injunction (i). [Capizon.] And now comes the defendant, by its counsel, and moves the court to dissolve the injunction heretofore issued in this cause, on the ground that the patent sued on is invalid and void in view of the exhibits filed herein on behalf of defend- ant, or to modify the injunction so as not to prohibit the man- ufacturing and selling of [hobby-horses] by C. D. under and in accordance with letters patent No. , granted to A. B., , 1893, for the reason that said [hobby-horses] do not infringe said patent sued on. R. Y., Solicitor for Defendant. (i) See Robinson on Patents, Sec. 1213. INJUNCTIONS. 899 No. 708. Order Overruling Motion to Dissolve. \Caption.'\ This case coining on to be heard this day of , on motion of the defendant to dissolve the preliminary injunc- tion, and counsel having been heard for the defendant as well as for the plaintiff, and due consideration having been had thereof, it is ordered that the said motion be and the same is hereby overruled at the defendant's cost. NOo 709. An Order Granting Motion to Dissolve Injunction and Substituting Bond for Injunction. {Caption^ This cause came on t6 be heard on the day of , on the motion of defendant filed , 1894, to dissolve the preliminary injunction heretofore granted in this cause, and counsel having been heard, and the same having been duly considered by the court, it is ordered, adjudged, and decreed that the said injunction be set aside, provided the said defend- ant within five days give a good and sufficient bond in the sum of dollars, to pay all damages and profits with reference to any account which may be found or assessed against the said defendant by reason of the manufacture and sale of [hobby-horses], and all manufactures and sales in in- fringement of plaintiff's letters patent sued on in his said bill, and the bond shall relate back to the day of , when the order for injunction was first made. No. 710. Order Dissolving Injunction, {^Caption.] This cause coming on to be heard upon the motion of the defendant to dissolve the injunction heretofore granted in this 900 SUITS IN EQUITY. cause, and upon affidavits in support of and against the said motion, and counsel having been heard, and the same having been considered by the court, it is hereby ordered, adjudged and decreed that the same be and it is hereby set aside and vacated. No. 711. Final Decree Making a Temporary or Preliminary Injunction Perpetual. This cause came on for final hearing on the bill of com- plaint, and the amendment thereto herein filed upon the day of , the answer of the defendant, C, D., and the replication thereto ; and thereupon it was by , and between counsel for complainant and said C. D., with the consent of the court, agreed that said cause should be submitted upon the same evidence on this final hearing as was had and pro- duced before the court at the hearing upon the motion for a preliminary injunction herein before allowed. And there- upon said evidence being submitted, the cause was argued by counsel. Upon consideration whereof the court being fully advised in the premises, do find that the equity in the case is with the complainant as against the said C. D., and that the said E. & F. Railway Company is entitled to the relief for which it prays as against him. It is therefore accordingly ordered, adjudged and decreed by the court that the injunction heretofore granted in the case as against the said C. D. be made perpetual, and that said C. D. pay all the costs herein made. (i) Taken from the record in Arthur vs. Toledo, Etc R. Co., il C. C. A. S83. CONTEMPT OF COURT, QOI CONTEMPT OF COURT. No. 712. Petition for an Attachment for Contempt. [Caption.] Now comes the Lake Shore Railway Company and repre- sents to this honorable court that it is one of the defendants in said above cause, and is a duly incorporated railway in the states of and , and is engaged as a common car- rier in said several states, in the business of receiving and hauling and delivering cars of its own and connecting car- riers having freight therein from one state to another. That in the performance of such service it has in its em- ploy a large number of men. That in the usual course of business with the said com- plainant in the above cause, there were, upon the day of , between the hours of 4 and up. m., upon the tracks and in the yards of said, the Lake Shore Railway Company, to be delivered tO' the Toledo Railway Company, a number of cars laden with freight, shipped from within the state of , and consigned to places without said state, to be by said The Toledo Ry. Co. hauled over its lines within and be- yond the state of , and to be delivered to other connect- ing carriers therein. That upon the receipt of said cars and freight by the said Lake Shore Railway Company upon the day of , certain of said Lake Shore Railway Company's employes, to wit: [nawiing them], locomotive engineers in charge of its locomotives znS engines, having theretofore had full notice of the order heretofore made, an9 of the law applicable to the 902 CONTEMPT OF COURT. case, and whilst in the service of said company, refused to obey the order and mandate of this court in said cause and deserted their locomotives and engines in the yards of said company for the reason that Ann Arbor cars of freight were in the trains of said company. Said employes in fact refusing to haul said cars and perform their service, for the reason that there were Ann Arbor cars in said train. That the action of said engineers in refusing to perform said service and haul said cars was following out a plan, ar- rangement or agreement theretofore made by said engineers, in an organization of locomotive engineers, of which they were memebers, and in compliance with orders and instruc- tions from the superior officers of said association or organ- ization. That therein the said ^naming them] locomotive engineers, employes of said The Lake Shore Ry. Co. disobeyed and vi- olated the order of said court as aforesaid, in consequence whereof the said The Lake Shore Ry. Co. has not been able to fully perform and obey the orders of said court as therein made. Wherefore said Lake Shore R. Co. asks that an attach- ment may issue forthwith against said {jiaming thewi], as being in contempt of the restraining order of this court ; and for such other and further orders in the premises as is just and proper. The Lake Shore Ry. Co., [VerMcation.] By E. D., its Solicitor. (i) The foregoing petition is taken from the record in Toledo, Etc., R. Co. vs. Pennsylvania Co., 54 Fed. Rep. 730. The practice in contempt proceedings has been far from uniform in the Federal courts with reference to the initial proceedings. The better practice is to bring the question of contempt to the atention of the court by petition, verified by affidavit, and to move for a rule to show cause. The petition should state the names of the persons to be attached. Creditors vs. Cozzens, No. 3378 Fed. Cas., 3 N. B. R. 281 ; Am. Construc- tion Co. vs. R. R. Co., 52 Fed. Rep. 937 ; the specific acts of commission or omission which constitute the contempt, Toledo C. C. R. Co. vs. Penn. Co. CONTEMPT OF COURT. 9°3 54 Fed. Rep. 747; In re Swan, 150 U. S. 637; In re Sawyer, 124 U. S. 207; when and where committed, U. S. vs. Berry, 24 Fed. Rep. 780; In re Litchfield, 13 Fed. Rep. 868-9. A copy of the petition or motion and affidavit should be served upon the contemner personally. Am. Construction Co. vs. Ry. Co., 52 Fed. Rep. 938; U. S. vs. Murphy, 44 Fed. Rep. 40. No. 713. Petition by a Receiver for an Attachment for Contempt of Court. The Circuit Court of the United States, Southern District of Ohio, Western Division. Samuel Thomas, Complainant, vs. The Cincinnati, New Orleans & Texas Pacific Railway Com- pany, Defendant. Now comes Samuel M. Felton, receiver, heretofore appoint- ■ed herein by the order of this court made March 18, 1893, whereby he was directed tO' operate the line of road of the Cincinnati, New Orleans & Texas Pacific Railway Company ■extending from Cincinnati, Ohio, through the state of Ken- tucky to Chattanooga in the state of Tennessee, as a com- mon carrier of passengers and freight, in the operation of which he has been since then and still is engaged, and says that he has been for the past week and still is greatly impeded in the operation of said road by a strike of his employes and of employes of other railroads in the Cincinnati, Ohio, who are prevented from receiving and delivering to him at Cin- cinnati, Ohio, freight coming from or to be carried over his said line of road ; that said strike of said employes is the re- sult of a conspiracy between one F. W. Phelan, now in the city of Cincinnati, Ohio, and one Eugene V. Debs and others to tie up the operation of the road operated as they well knew by your petitioner as receiver as aforesaid and of other rail.- 904 CONTEMPT OF COURT. roads in the Western States of the United States, until cer- tain demands or alleged grievances or certain persons not in the employ of the receiver or of any other railroad of the United States, are acceded to by persons in no manner con- nected with the management of any railroad in the United States; that the employes of one George M. Pullman, or of the company with which he is indentified, commonly called the Pullman Palace Car Company, having at Pullman, in the state of Illinois, struck for higher wages, and their said de- mands not being acceded to, the said Eugene V. Debs and F. W. Phelan and others, members of a so-called labor organ- ization known as the American Railway Union, combined and conspired with themselves and with divers and sundry persons, members of said organization, many of whom were induced to and did become members of said organization for that purpose, to extort from said Pullman the increase of wages so demanded, and for the purpose of injuring the said Pullman or said Pullman Palace Car Company; and to force him to make the concession demanded as aforesaid, the said Debs and the said Phelan and said other persons, members of said American Railway Union have maliciously conspired and undertaken to prevent your petitioner as such receiver and other railroads from using cars of the Pullman Palace Car Company in operating their said lines of road for the carriage of passengers, your said petitioner and said other lines of road being under contract with said Pullman Palace Car Company to operate on their respective lines of road cars of that company; that in pursuance of said conspiracy and to carry out the object and purpose thereof, the said F. W. Phelan, although a resident of the state of Oregon, came to the city of Cincinnati a week or more ago and has ever since there remained and still is in said city and has and now is engaged in setting on foot, inciting, directing and carrying forward a strike among the employes of your petitioner as re- ceiver as aforesaid, well knowing them to be such, and the employes of other railroads terminating in said city of Cin- CONTEMPT OF COURT. 9*^5 cinnati, and in order to inaugurate and incite said strike for the purpose aforesaid, the said F. W. Phelan did on the 27th day of June, 1894, call a meeting in the city of Cincinnati, Ohio, of the employes of your petitioner as receiver as afore- said and to the employees of other railroads terminating in said city, whereat he did make and utter inflammatory speech- es to said employes there assembled in pursuance to the call of said F. W. Phelan, in which he did urge them to quit the service of your petitioner, well knowing them to be in said service, and to said other railroads and thereby and by other means to tie up said railroads and to prevent, by pursuasion if possible, but by clubbing if necessary, any other persons from taking their places; and many other inflammatory speeches and utterances at meetings of a similar kind and elsewhere has the said Phelan made for the purpose afore- said, and he is now present in the city of Cincinnati person- ally directing, commanding and ordering the management of said strike, and is thereby personally interfering with your petitioner in the operation by him as receiver of said line of road. Your petitioner has been put to a great expense in providing guards and protection for the said railroad in his custody as said receiver, and that the business of said railroad at Cin- cinnati, Ohio, can only be conducted by him under the pro- tection of armed men employed for that purpose, all of which is owing and due to the aforesaid conduct and conspiracy between the said Eugene V. Debs and the said F. W. Phelan and the members of the said American Railway Union ; that said F. W. Phelan assumes to and does command and con- trol said employes as an army; all of which your petitioner says is in contempt of the foregoing order of this court. Wherefore your petitioner prays that this court will make an order directing that the said Phelan be arrested and brought before this court to answer for his said contempt; and fur- ther that the said F. W. Phelan be enjoined from combining and conspiring with others, either jointly or severally, or as 906 CONTEMPT OF COURT. an officer or member of any so-called labor organization with the design or purpose of causing or maintaining a strike upon the line of railroad operated by your petitioner, and from ordering, recommending, advising or approving, by communication, instruction or otherwise the employes of said receiver, or any of them, to join in or sustain a strike, and from in any manner interfering with or impeding, directly or indirectly, your receiver in his operation of said railroad or any of his employes so engaged, and from in any manner aiding, abetting or encouraging others to strike and refuse to work for said receiver in the operation of said road, and thereby embarrass or impede the operation of his said road. S. M. Felton, [ Verification. ] Receiver. (i) The foregoing petition was filed in the case of Thomas vs. C. N. O. & T. P. Ry. Co., pending in the Circuit Court of the United States for the Southern District of Ohio. The proceedings thus instituted for con- tempt of court resulted in the conviction and imprisonment of F. W. iPhelan. As to the jurisdiction and power of a court of equity to punish for contempt, see ex parte Debs, 159 U. S. 251, and the cases reviewed by the court in the opinion, U. S. vs. Berry, 24 Fed. Rep. 780. See note to preceding form No. 712. No. 714. Notice of Motion for an Attachment for Contempt of Court (i). [Caption.] To F. P. : Take notice, that on the day of at o'clock , or as soon thereafter as counsel can be heard, we will apply to the Honorable the Circuit Court of the United States for- the District of to attach and commit you for contempt of said court in the particulars set out in the in- tervening peition filed herein on the day of by S. CONTEMPT OF COURT. 907 F., receiver, of which you have already been served with a copy. X. & X., Attorneys for S. F., Receiver, (i) Where the contempt was committed in the presence of the court no notice is required to be given the offender. Ex parte Terry, 128 U. S. 289. No. 715. Motion to Commit for Contempt of Court. \_Captioh.] Now comes A. B. and moves the court for a rule against S. R. to show cause why he should not be punished for a contempt of this court upon the grounds set forth in his pe- tition filed herein , 190 — , a copy of which is hereto at- tached marked " A " and made a part hereof. R. X., Attorney for Receiver. No. 716. Motion for Rule to Show Cause (i), etc., for Contempt of an Injunction in a Patent Case. [Caption. ] Now comes the plaintiff and moves the court for a rule upon the defendant to show cause why he should not be attached for contempt for violation of the injunction hereto- fore granted in this cause, and for reason says that on or about the day of , 1894, a decree was rendered herein, finding the letters patent sued on good and valid, the property of plaintiff, and infringed by defendant by the man- ufacture, use, and sale of [cradles] known and designated as [hobby-horses], and awarding an injunction against said de- fendant, his clerks, agents, servants, and workmen, which decree is still in full force and effect ; that on or about the day of , a writ of injunction was issued in accord- ance with the said decree, enjoining said defendant, his clerks, agents, servants, and workmen from the manufacture, use, and sale of the said infringing devices, which writ of in- 908 CONTEMPT OF COURT. junction was duly served upon the defendant on or before the day of , 1894, and is still in full force and effect ; but since the service of said injunction, defendant and his agents, particularly 1/. K., in violation of the rights of plaintiff and of the injunction aforesaid, have continued ex- tensively to manufacture, use, and sell [cradles] known and designated as [hobby-horses], embodying the invention, the manufacture, use, and sale of which was enjoined as afore- said, being identical in construction with the hobby-horse, adjudged to be an infringement of the patent sued on, to the great and irreparable damage and injury of the plaintiff. A. B. R. X., Counsel for Plaintiff. (i) A motion for a rule to show cause is sometimes the initial proceed- ing in bringing a question of contempt to the attention of the court, Mexican Ore Co. vs. Mexican Co., 47 Fed. Rep. 356; Mathews vs. Spangenberg, 15 Fed. Rep. 813; Fischer vs. Hayes, 6 Fed. Rep. 64. In such case it should be supported by affidavits or other evidence, which may be ora! testimony before the court or depositions, or as may be. A verified petition for this purpose is better practice. No. 717. Order for Arrest for Contempt of Court (i). [Caption.] Upon the reading and filing of the intervening petition of said S. F., receiver, as aforesaid and the affidavits in support thereof, charging one C. D. to be in contempt of the order of this court hereinbefore made, whereby said S. F. was ap- pointed receiver of the E. & F. Railway Company with di- rection to operate the same as such receiver, in knowingly, unlawfully and maliciously interfering with and obstructing the operation of said road by said receiver, all of which is very fully set out in said intervening petition and in said affidavit, it is now ordered that the marshal of the United States, for the -. District of , do forthwith apprehend said C. D., if he be found in his bailiwick and bring him be- CONTEMPT OF COURT. 909 fore this court at the United States Circuit Court Room in the Federal Building in , there to be dealt with as the law may direct. (i) This order was entered in the case of Thomas vs. C. N. 0. & T. P. Ry., in the Circuit Court of the United States for the Southern District of Ohio, for the arrest of F. W. Phelan charged with disobeying an order of court in connection with strike of Railway employees. A person can not be arrested in one district to answer a charge of con- tempt of court in another district. In re Graves, 29 Fed. Rep. 60; In re Manning, 44 Fed. Rep. 275, No. 7ia Order Granting Motion for Contempt. \_Caplion.'] Upon motion of plaintiff it is ordered that a rule be issued on the defendant, C. D., and on h. K., to appear before this court at 10 o'clock a. m., on Saturday, the day of , 1894, to show cause why they should not be committed for contempt for violation of the injunction heretofore ordered and issued in this cause. No. 719. Rule to Show Cause (i). [Capiion.'] The President of the United States of America to C. D. : You are hereby cited and admonished to appear before the circuit court of the United States within and for the district of , on , the day of , 1894, at o'clock a. m., and show cause, if any you have, why the said C. D. should not be attached for contempt of court in failing to obey the order of injunction heretofore allowed and issued by the said court, and served upon you. It is ordered that the marshal of this district make legal" service, and due return of this rule, on or before the appear- ance day above noted. [Add teste. See form No. 56.] 9IO CONTEMPT OF COURT, (i) This rule should be served personally upon the contemnor, U. S. vs. Justices, 10 Fed. Rep. 460, within the district where hR is required to answer for contempt, In re Manning, 44 Fed. Rep. 275. In re Graves, 29 Fed. Rep. 60. Where the contempt consists in a failure to obey a subpoena to a witness, the court issuing the writ is the only court to punish for the contempt. In re Spofford, 62 Fed. Rep. 443. To the rule to show cause the contemnor may return or answer under oath before the day set for hearing in which he may deny the allegations of the petition or admit them, or admit them and justify his action. The denials in the return or answer are not conclusive. U. S. vs. Anonymous, 21 Fed. Rep. 767; In re Pitman, No. 11 184 Fed. Cas., i Curtis 86, and cases there collated. Statement of new matter in the answer may be contro- verted by replication. Rx parte Rowland, 104 U. S. 615. The court may adopt such mode of trying the question of contempt as it may deem proper, provided the person charged is given an opportunity for explanation and defense. Ex parte Savin, 131 U. S. 267. No. 720. Keturn on Above Rule by Marshal (1). Received this writ at , on the day of , 1894, and on the same day, at , I served the within-named C. D. [(?r, the B. K. Manufacturing Company, a corporation, by C. D., its president], with a true copy of this writ, having all the indorsement thereon, by handing it to said person per- sonally \or say., left at his regular place of business, at No. , street, ^j. H. C, United States Marshal for the District of Fees. One service, One copy miles, (i) Personal service should be made on person charged with contempt. U. S. vs. Justices, 10 Fed. Rep. 460. CONTEMPT OF COURT., 9^^ No. 721. Order Fixing Day for Hearing Contempt Proceedings (i). [Caption.] This day this cause coming on to be heard on- certain af- fidavits filed herein charging F. P. with contempt of court in interfering with the officers and employes of the court in the management of the C. D. Company, now in the hands of the receiver of this court, and the said F. P. being present in court, said matter is set for hearing on the day of , at o'clock , and pending said hearing the bond of the said F. P. is fixed at $ , and in default of said bond it is ordered that he be confined to the county jail. (i) The court may adopt such mode of trying' the question of contempt as it may deem proper, only so that the person charged is given an oppor- tunity for explanation and defense. Ex parte Savin, 131 U. S. 267. No. 722. Order Continuing Hearing of Evidence in Contempt Pro- ceedings (i). [Caption.] This day this cause came on further to be heard upon the motion of the A. B. Railway Company for a rule to show cause why attachment for contempt should not issue against S. L. and others. And the court having heard the testimony on the part of said applicant and a part of the testimony for said respondents and the hour of adjournment having arrived the further hearing of this matter is continued until tomor- row morning at 9 o'clock. (l) The court may adopt such mode of trying the question of contempt as it deems proper, only so that person charged is given an opportunity for explanation and defense. Ex parte Savin, 131 U. S. 267. 912 CONTEMPT OF COURT. No. 723. Order Adjudging Defendant Guilty of Contempt of an Order of Injunction and Fining Him (i). ^Caption.] Upon the return of the rule to show cause heretofore en- tered, and it appearing that service thereof has ben had on said defendant, C. D., and upon L. K., by delivering a copy thereof to the said C. D., and counsel having been heard in his behalf, the court finds the said defendant is in contempt of the injunction (2) heretofore issued herein, and orders that said defendant pay dollars fine and the costs of this proceeding, and that if the same be not paid within five days from this date, viz., the day of , 1894, the said C. D. be committed to the jail of county, in the state of , and confined therein until the same be paid (3). (i) The power of a court to punish for contempt is found in R. S. Sec 725. See also ex parte Robinson, 19 Wall. 509; Kirk vs. Mfg. Co., 26 Fed. Rep. 501 ; Ex parte Buskirk, 72 Fed. Rep. 14. There are three classes of cases in which the court may punish for con- tempt. First. Where there has been a misbehavior of a person in the pres- ence of the cotu-t or so near thereto as to obstruct the administration of justice. See In re Terry, 36 Fed. Rep. 419, 128 U. S. 289; U. S. vs. Pattison, 26 Fed. Rep. 509; U. S. vs. Carter, No. 14740 Fed. Cas., 3 Cranch C. C. 423 ; U. S. vs. Anonymous, 21 Fed. Rep. 761 ; In re Brule, 71 Fed. Rep. 943. Second. Where there has been a misbehavior of an oiScer of the court in his official transactions. Bogart vs. Supply Co., 27 Fed. Rep. 722; In re Pitman, No. 11 184 Fed. Cas., i Curtis 186; In re May I Fed. Rep. 737 ; U. S. vs. Caton, No. 14758 Fed. Cas., i Cranch C C. 150. Third. Where there has been disobedience of an officer, party, juror, witness, or other person to any lawful writ, process, order, rule, de- cree, or command of the court. It is not necessary that the order be written. Bridges vs. Sheldon, 7 Fed. Rep. 45. The Supreme Court has held that judgments in proceedings for contempt are not reviewable on appeal or error. Hayes vs. Fischer, 102 U. S. 121 ; in re Debs, 158 U. S. 564, S72; iS9 U. S. 251 ; in re Chetwood. 165 U. S. 443, 462, but may be reached by certiorari in the absence of other adequate remedy. In re Chetwood, 165 U. S. 462. But see Worden vs. Searls, 121 U. S. 24, 25. It has also been held that under the Court of Appeals Act the Circuit Courts of Appeals may review such orders on CONTEMPT OF COURT. 9^3 writ of error. Gould vs. Sessions, 67 Fed. Rep. 163, 14 C. C. A. 366; Butler vs. Fayerweather, 91 Fed. Rep. 458 ; Carey Mfg. Co. vs. Acme Co., 108 Fed. Rep. 873, S. C. 188 U. S.,— but not on appeal. Sessions vs. Gould, 63 Fed. Rep. looi. (2) The order adjudging the contempt need not recite the offense, when it appears in the proceedings. Fischer vs. Hayes, 6 Fed. Rep. 63. (3) This is not uncertain or indefinite, but it is a proper clause in order. Tinsley vs. Anderson, 171 U- S. lOi. No. 724. Order Adjudging Party Guilty of Contempt and Ordering Further Hearing as to Amount of Fine. \_Capiton.'] A motion for attachment for contempt herein having come on for further hearing on the question of punishment or terms, on this day of , and R.X., Esq., having been heard for the motion, and R. Y., Esq., opposed: Now, therefore, it is hereby ordered and decreed that the defend- ant is adjudged to have committed the contempt alleged, and that he pay, as a fine therefor, the amount of all costs, charges, and disbursements whatsoever suffered, borne, or incurred by the plaintiff by reason of, or on account of, the said motion, and that the question of the amount of said fine be submitted to this court on affidavits, and without argu- ment, as follows : The plaintiff to serve his affidavits on the solicitor for the defendant on or before Friday, ; that defendant serve his replying affidavits on counsel for plain- tiff on or before Tuesday, , and that plaintiff have the right to reply ; and that all affidavits be filed on or before Friday, . (l) Fischer vs. Hayes, 6 Fed. Rep. 63. No. 725. Order Fining Defendant for Contempt (i). {Caption.] This motion having been heard on the day of , — , on affidavits and argument by counsel for the respec- tive parties, and thereupon an order having been duly made 914 CONTEMPT OF COURT. that it be referred to S. M. to ascertain the fact of said in- fringement, if the same be so, and report his finding to this court, and upon the coming in of the report of said referee, and hearing counsel for the respective parties in support thereof and in opposition thereto, said report was confirmed ; and it was then further ordered that the plaintiff file with the court, and serve copies on defendant, afl&davits showing the expenses incurred in the prosecution of this second at- tachment for contempt ; that defendant file and serve answer- ing affidavits, and that plaintiff may reply thereto; and an amended order and the affidavit of C. D., the defendant, exe- cuted on the day of , having been filed in reply to said plaintiff's affidavit, it is, upon consideration thereof, ordered that the defendant pay into court the sum of dollars, as set forth in the affidavit of B. H., executed herein on the day of , and the further sum of dollars, as set forth in the affidavit of V. F., executed herein on the day of , amounting altogether to the sum of dollars, a fine for said second contempt, within thirty days from the date of the entry of this order, to wit, tte day of ; and that if not paid, the defendant stand com- mitted till it be paid, and that when paid it be paid over to the plaintiff in reimburseriient. (i) An order adjudging a person guilty of contempt does not prevent the court making a subsequent order fixing the amount of the fine and directing commitment until the same shall be paid. Fischer vs. Hayes, 6 Fed. Rep. 63 : No. 726. Entry of Distribution. [Caption.^ Upon motion of J. E. B., assistant United States attorney, and it appearing to the court that the defendant C. D. has paid into the registry the fine for contempt in this case, amounting to dollars, and the court proceeding to dis- tribute the same, orders and directs the said sum to be paid to the assistant treasurer of the United States at , for the use of the United States. CONTEMPT OF COURT. 915 No. 727. Order of Commitment for Contempt of Court for Interfering with Operation of a Railroad in Hands of Receiver. [Caption.] Whereas, on the day of , the above named com- plainant did file in this court a certain bill of complaint against the above named C. D. Railroad Company wherein he did pray, among other things, for the appointment of a re- ceiver to take charge of and operate the railroad of the said C. D. Railroad Company, extending from within the city of in the state of , through the state of , to the city of , in the state of , and whereas the court having read and considered said bill of complaint and finding that the allegations therein did entitle the complainant to the appointment of a receiver, did on the day of by a certain entry herein made appoint one, S. F. receiver of said road, directing him to take possession of said road and of all the property of said company and to operate said road as such receiver as a common carrier of freight and passengers, and that said S. F. since said day has been as such receiver engaged in the operation of said road as such common carrier and as such now is and ever since that time has been engaged in commerce among the several states of the United States; and Whereas, on the day of , the said S. F. as such receiver did in this cause file a certain intervening petition. [The intervening petition may be set out in full.'] And there- upon said receiver did also file in this cause the affidavits of S. R. and L. M. in support of said intervening petition, and upon the reading and consideration whereof the said court did order an attachment to issue for one F. P. that he might be forthwith apprehended and brought before this court to answer to the matter and things therein alleged and set forth. Thereupon this court did by an order duly entered in this gi6 CONTEMPT OF COURT. cause commit said F. P. to bail in the sum of $ , which was duly furnished by him. Thereupon came counsel for said complainant and moved the court that said F. P. be committed for the contempts of the authority and said order of said court as alleged and set forth in said intervening petition and in the affidavits in sup- port thereof, and the day of , at lo o'clock a. m. was fixed as the time for hearing said alleged contempt, of all of which the said F. P. was duly notified by personal serv- ice upon him of a copy of said intervening petition and of said affidavits and of said motion, and at said hour of lo o'clock a. m. the said F. P. appeared in court in person and by coun- sel in response to said motion and the allegations contained in said intervening petition and to said affidavits, and the hearing of said matter of contempt was proceeded with in open court and witnesses were heard upon oral examination in support and in denial of the charges therein contained, and said hearing did progress from day to day until the day of , and was argued by counsel. And the court having considered the same does now upon the evidence and the arguments of counsel find the allegations of said intervening petition and of said affidavits to be true, and that the said F. P. and the said E. D. and others consti- tuting the A. R. Union did unlawfully combine, confederate and conspire with themselves and others, members of the A. R. Union, to impede, delay and hinder the said receiver in the operation of said railroad by causing the said employes of said receiver to refuse to handle, as it was their duty to do, a certain class of cars known as sleeping cars belonging to or controlled by the P. P. Car Company for the continued op- eration whereof the said receiver was bound in pursuance of a certain contract in writing entered into between the C. D. Company and the said P. P. Car Company before his ap- pointment as receiver and not yet expired, and by the terms of said combination and conspiracy did corruptly agree together that, in case any of the employes of said receiver declining to CONTEMPT OF COURT, 917 handle said cars should be discharged from the employment of said receiver by reason thereof; all other employes of said receiver should be urged, incited, persuaded and forced to quit and abandon the service and employment of said re- ,ceiver with the view and purpose thereby to so injure said property of which said S. F. was appointed receiver, and to so hinder, molest and interfere with him in the operation thereof as that he would discontinue the operation of said sleeping cars and violate the said contract requiring him to operate the same; and that in furtherance of said corrupt agreement and conspiracy the said F. P. did come from the city of to the city of on or about the day of , and from that day continuously until the filing of said intervening petition herein and thereafter to the present time did urge, incite, and request by the means and in the manner set forth in the intervening petition the employes of said re- ceiver to not handle said sleeping cars, and by threats and intimidations did induce the employes of said receiver to re- fuse and fail to handle said sleeping cars as it was necessary for them to do in the operation of said road by said receiver, and did cause said employes of said receiver to quit his serv- ice in a body for that said receiver did not and would not, in violation of the contract aforesaid, refuse to transport or han- dle said sleeping cars. And the court does further find by reason of the matters and things aforesaid that said receiver has been greatly em- barrassed, impeded, delayed, resisted and interfered with in his execution of said order of this court appointing him re- ceiver of said railroad, and directing him to operate the same as aforesaid. Wherefore the court does find and adjudge said F. P. guilty of disobedience to, and resistance of the said receiver and of the said order of court appointing him receiver as aforesaid, and to be in contempt of the authority of said order of the court, and that the said F. P. by reason of the contempt aforesaid be, and he hereby is committed to the jail gi8 CONTEMPT OF COURT. of county, state of for a period of from this date. (i) Although it is not necessary to recite at length the offense in the order adjudging a contempt (Fischer vs. Hayes, 6 Fed. Rep. 63) it is frequently done. This order was taken from the record in the case of Thomas vs. C. N. O. & T. P. Ry., pending in the Circuit Court of the United States for the Southern District of Ohio. As to the jurisdiction and power of a court of equity to punish, for contempt by interfering with the operation of a railroad engaged in inter- state commerce, carrying of U. S. mail, etc., see In re Debs, 158 U. S. 564. No. 728. Order for Commitment for Contempt of Court in Attempting to Corrupt a Witness (i). [Caption.] Whereas, during the progress of the trial of the action of the United States of America vs. H. Goujon, in this court, on the 27th day of Febraury, 1889, one Bartolo Flores, a witness on the part of the government duly subpoenaed and in attendance upon the court, testified, in substance, that while in said attendance, on said 27th day of February, one Alejandro Savin, on two several occasions, once in the jury room of said court, temporarily used for witnesses and within a few feet of the court room, and once in the hallway of said court building, immediately adjoining said court room, did approach said witness, and in said jury room did improperly endeavor to deter the said witness from testifying in behalf of the government in said cause, and in the said hallway he offered the said witness money not to testify against the de- fendant in said action of the United States vs. Goujon; and whereas, upon such testimony of said Flores, this court then and there made an order directing the said Savin to show cause before this court, at 9.30 o'clock a. m., on the 28th day of February, 1889, at the court room thereof, why he should not be adjudged guilty of a contempt of this court; and whereas, on said 28th day of February, the said Savin CONTEMPT OF COURT. pip appeared with counsel in response to said order; whereupon the matter was heard in open court, and witnesses for and against him were sworn, and their testimony given, and the same having been duly considered by the court, the court now finds the facts to be : That during the progress of the trial of the action of the United States of America vs. H. Goujon, in this court, on the 27th day of February, 1889, one Bartolo Flores, a witness on behalf of the government, duly subpoenaed and in attendance upon the court, while in such attendance, on the said 27th day of February was on two several occasions, once in the jury room of said court, which was temporarily used for a witness room, and which is lo- cated less than seven feet of the court room, and once in the hallway of said court building, immediately adjoining the court room, was approached by the respondent, Alejan- dro Savin, and said Savin did then and there, in said jury room unlawfully attempt and endeavor to deter said witness, Flores, from testifying for the government in the aforesaid action, and in said hallway the said Savin did at that time stated unlawfully offer the said witness, Flores, money not to testify against the defendant therein, the aforesaid Gou- jon; from which facts it is considered and adjudged by the court that the said respondent, Alejandro Savin, did thereby commit a contempt of this court, for which contempt it is by the court now ordered and adjudged that the said Alejandro Savin be imprisoned in the county jail of Los Angeles county, California, for the period of one year. The marshal will execute this judgment forthwith. (i) The foregoing order is taken from the opinion in re Savin, 131 U. S. 268, and appears to have been made upon a suggestion by the United States Attorney, that one of the witnesses for the government in a case pending, had been corruptly approached, and upon the evidence of witnesses exam- ined in open court in the presence of the respondent on the same day. 9,20 CONTEMPT OF COURT. No. 72a Order to Commit for Contempt Committed in Open Court (i).. The Circuit Court of the United States of America for the Northern District of California. In the Matter of Contempt of David S. Terry. Whereas,, on this 3rd day of September, 1888, in open, court, and in the presence of the judges thereof, to wit. Honorable Stephen J. Field, circuit justice, presiding; Hon- orable Lorenzo Sawyer, circuit judge, and Honorable George M. Sabin, district judge, during the session of said court, and while said court was engaged in its regular business, hear- ing and determining causes pending before it, one Sarah Althea Terry was guilty of misbehavior in the presence and, hearing of said court ; And whereas, said court thereupon duly and lawfully or- dered the United States Marshal, J. C. Franks, who was then- present, to remove the said Sarah Althea Terry from the court room; And whereas, the said United States marshal then and there attempted to enforce said order, and then and there was resisted by one David S. Terry, an attorney of this court, who, while the said marshal was attempting to execute said order in the presence of the court, assaulted the said United States marshal, and then and there beat him, the said mar- shal, and then and there wrongfully and unlawfully assaulted said marshal with a deadly weapon, with intent to obstruct the administration of justice, and to resist such United States marshal aijd the exeqution of said order. And whereas the said David S. Terry was guilty of con- tempt of this court by misbehavior in its presence and by a forcible resistance in the presence of the court to a lawful order thereof, in the manner aforesaid; Now, therefore, be it ordered and adjudged by this court, that the said David S. Terry, by reason of said acts was, and CONTEMPT OF COURT. 9^1 is, guilty of contempt of the authority of this court commit- ted in its presence on this 3rd day of September, 1888; And it is further ordered, that the said David S. Terry be punished for said contempt by imprisonment for the term of six months ; And it is further ordered, that this judgment be executed by imprisonment of the said David S. Terry in the county jail of the county of Alameda, in the state of California, un- til the further order of this court, but not to exceed said term of six months; And it is further ordered, that a certified copy of this or- der, under the seal of the court, be process and warrant for executing this order. (i) Taken from the opinion in ex parte Terry, 128 U. S. 297. As to the practice in cases of contempt committed in the presence of the court consult, ex parte Terry, 36 Fed. Rep. 419 ; 128 U. S. 297 ; U. S. vs. Pattison, 26 Fed. Rep. 509 ; U. S. vs. Carter, No. 14,740, Fed. Cas., 3 Cratich C. C. 423 ; U. S. vs. Anonymous, 21 Fed. Rep. 761 ; in re Brule, 71 Fed. Rep. 943- No. 730. Temporary Commitment of Person Arrested for Contempt. United States of America, District of . A. B. 1 vs. [For contempt of Court. The C. & D. Co. J The President of the United States of America, to the Mar- shal of the District of , Greeting: The defendant, L. M., having been arrested, and having been arraigned at the bar of said court, and being required to enter into a recognizance in the sum of $ for his ap- pearance before said court, from day to day, with good and sufficient security, and not complying with the order of the court, is remanded into the custody of the marshal, to be com- mitted to the jail of county in the state of until the further order of the court aforesaid. 922 CONTEMPT OF COURT. Witness the Honorable Melville W. Fuller, chief justice of the United States, this day of , A. D. , and in the year of the Independence of the United States of America. Attest: B. R., Clerk of the Circuit Court of the United States for the District of . For Contempt of Court. No. 731. Final Commitment for Contempt of Court. Circuit Court of the United States, District of , Division. A. B. vs. The C. & D. R. Co. The respondent, L. M., having been tried and found guilty as charged in the intervening petition of the receiver and af- fidavits in support thereof, for contempt of court, therefore the court pronounced the following sentence, to wit: That the said L. M. be imprisoned in the jail of County for the terra of months. This, therefore, is to command the marshal of said district to take the body of the said L. M. and commit the same to the said jail of county pursuant to the above sen- tence. Witness the Honorable Melville W. Fuller, chief justice of the United States, this day of , A. D. and in the year of the Independence of the United States of America. : Attest: B. R., Clerk of the Circuit Court of the United States for the District of . CUSTOMS AND REVENUE CASES. 9^3. CUSTOMS AND REVENUE CASES. NO. 732. Customs Protest (i). , , 190-- To the Surveyor of Customs, Port of . Sir: — The A. B. Company, doing business at 12 Spruce street, in the city of , state of , hereby protests against your assessment of' duty at the rate of per cent. on certain 200 bales of waste [or, as may be] marked K. L. No. , which were imported by us per S. S. " The Volga " from Liverpool, which arrived in New York on , 190 — , and were forwarded to by the said C. & D. Railroad un- der I. T. Entry No. . Said goods arrived in , , 190 — , were entered for consumption, Bond No. , liqui- dated , 190 — , and the additional duty was paid , 190 — . We claim said assessment is illegal and unjust because [here state the grounds of objection to assessment of duty by custom o-fficial'], and that duty should be assessed under [here state section, paragraph and act under which it is claimed duty should be levied']. We therefore ask you to refund the sum of $ , which was illegally and unjustly assessed on the goods above men- tioned. We are yours respectfully, The A. B. Company. (i) Proceedings to recover excessive customs duties are begun by a protest filed by the importer with the collector of the port of entry. Ad- ministrative Customs Act of June 10, 1890, sec. 14, 26 Stat, at L. 137. At the interior ports the surveyor of customs is usually the collector. 924 CUSTOMS AND REVENUE CASES. No. 733. Customs Protest (i). , , 190—. Hon. S. R., Collector, Port of . Sir: — We hereby protest against the payment of 25 per centum ad valorem duty charged by you on our importation of 100 barrels coal tar product marked E N G i/ioo, arrived per S. S. " Ohio," from Hull, and entered free of duty on November, 4, 1895, liquidated November 15, 1895, Entry No. being 192,500. We claim that the said goods are prod- ucts of coal tar, not medicinal nor an aniline color or dye, under paragraph 443, Act of August 28, 1894, and should not have been assessed and classified by the appraisers as dis- tilled oil at 25 per centum ad valorem. We have paid the amount exacted in order to obtain pos- session of the goods, and claim to have the same refunded. We remain, yours respectfully, A. B. Manufacturing Company, By R. X., Attorney. Entry No. . Liq. — — . (i) Proceedings to recover excessive customs duties are begun by a protest filed by the importer with the collector of the port of entry. Ad- ministrative Customs Act of June 10, 1890, sec. 14, 26 Stat, at L. 137. At the interior ports the surveyor of customs is usually the collector. No. 734. Report of Collector to General Appraisers (i). United States Customs Service, Port of , Collector's Office, , , 190—. Board of U. S. General Appraisers, At the Port of New York. Gentlemen: — I submit the protest of the A. B. Manu- ■<< CUSTOMS AND REVENUE CASES. 9^5 facturing Company, 19,593, against the assessment of duty by this oififice at the rate of 25 per cent, ad valorem on certain so-called "Coal Tar Product," imported by them in the Ohio," November 4, 1895. An inspection of the invoice shows that the merchandise was returned by the appraisers as " Distilled Oil, 25 per cent." Duty was assessed thereon at 25 per cent, ad 'valorem under parc^apb.60, Act of August 28, 1894. Note G. A. 453, 507 and 942. I have to report that the claimants have complied with the requirements of Section 14 of the Act of June 10, 1890. The naval officer concurs in the decision of this office. (2) The entry and invoice covered by the above protest are in- • closed herewith. Respectfully yours, J. J., Collecton (i) Upon a protest being .filed the action of the appraiser and collector are reported to the Board bf General Appraisers. This is the beginning of the proceedings before the Board of General Appraisers who may take evidence by affidavit or deposition and pronounce its decision. See Cus- toms Administrative Act of June 10, 1890, 26 Stat, at L. 137; sec. 14. (2) Naval officers are confined to sea ports. The surveyor of customs performs the duty of the naval officer at interior ports. No. 735. Application to Revise Decision of Board of General Ap- praisers' with Exhibits (i). The Circuit Court of the United States for the District of . A. B. Manufacturing Company vs. The United States. To the Hon. the Circuit Court of the United States for the District of : Your petitioner, being dissatisfied with the decisions of the ZBoard of United States General Appraisers made within 926 CUSTOMS AND REVENUE CASES. thirty days immediately preceding the date hereof in each of the matters set forth and referred to in the annexed Schedule " A," which is hereby made a part hereof, as to the construc- tion of the law and the facts respecting the classification of such merchandise and the rate of duty imposed thereon under such classification, respectfully prays that the said Circuit Court review the questions of law and fact involved in said decisions, and for that purpose prays that an order be entered requiring the said Board of Appraisers to return to said Cir- cuit Court the record and evidence taken by them, together with a certified statement of the facts involved in each of the said matters and their decisions thereon. The particulars of the errors of law and fact involved in said decisions of said Board of Appraisers of which your pe- titioner complains, are set forth in the annexed Schedule " B," which is hereby referred to and made a part hereof. Dated . A. B. Manufacturing Company, Petitioner. By X. & X., Attorneys. SCHEDULE " A." The following are the importations and entries covered by this proceeding, with the dates thereof, and with svch other data as are convenient for purposes of identification: Entry No. Vessel. Entered. Protest No. Decision. 133104 " Croma " Aug. S/9S 96218- A/I5S75 July 23/96 173636 " Croma " Oct. 7/95 98418- A/I7S9I do. SCHEDULE "B." The Board of United States General Appraisers has con- firmed the action of the collector of the port in assessing and exacting duty at 25 per cent, ad valorem on certain crude coal tar acid or dead oil or tar oil, etc., thereby making errors of law and fact by failing to find, or finding the contrary of, the following propositions : First. Said merchandise is a product or preparation of coal tar, not a color or dye and not a medicinal preparation. CUSTOMS AND REVENUE CASES. 9^7 Second. Said merchandise is not, in fact or commercially, a distilled oil. Third. Said merchandise is entitled to free entry under paragraph 443 of the Tariff Act of August 28, 1894 (28 Stat, at L., 509). Fourth. Said merchandise is not dutiable under paragraph 60 of said Act. (i) Taken from the case of U. S. vs. Warren Chem. Mfg. Co., 84 Fed. Rep. 638, 28 C. C. A. £00. A proceeding to recover excessive custom duties is founded upon the Administrative Customs Act of June 10, i8go, Sec. 15, 26 Stat, at L. 137. It is in the nature of an action against the government for moneys in the treasury and is purely statutory in its nature. A party has no constitu- tional right to a trial by jury in such cases. Auffmordt vs. Hedden, 137 U. S. 310, 329. The petition should be filed in the Circuit Court for the district where the port of entry is situated and not in that of the district where the board of appraisers meets. In re Wyman, 45 Fed. Rep. 469. No. 736. Application for Review and Reversal of Decisions of the Board of General Appraisers under the Customs Law. The Circuit Court of the United States for the District of . In. re Application. of the A. B. Company. The A. B. Co., a corporation organized and existing un- der the laws of the state of , applies for a review of the following decisions of the board of general appraisers as to the construction of the law and the facts respecting the classification of merchandise imported by your petitioner in bond to , and the rate of duty imposed thereon under such classification ; said decisions having been made the day of , 1893. [Set forth the entries in full., as, Entry No. 61, dated Feb- ruary 4, 1893 ; Steamer Russia ; liquidated February 6, 1893 ; Protest No. '73; Department No. 12681 B. The amount of the erroneous assessment is $9.90.] 928 CUSTOMS AND REVENUE CASES. The collector assessed duties against your petitioner upon the actual market value and wholesale price of all of said merchandise as bought and sold in usual quantities at the time of its exportation to the United States in the principal markets of the country from which imported, in the condition in which said merchandise is there bought and sold for expor- tation to the United States, or consigned to the United States for sale, and also upon the value of all crates, cases, cartons, boxes, sacks, and coverings of every kind, and upon the value of all other costs, charges, and expenses incident to placing said merchandise in condition, packed f eady for shipment to the United States. The collector, in addition to said assessment on the value of said goods as aforesaid, and on the cost of packing them for shipment, also assessed and required your petitioner to pay duties upon the cost paid by your petitioner for placing upon and about said merchandise certain tickets, labels, marks, and devices, which were mere trademarks and labels which were no part of the actual market value or whole- sale price of said merchandise as bought and sold in usual quantities at the time of exportation to the United States at the principal markets of the country from whence im- ported in the condition ' in which such merchandise is there bought and sold for exportation to the United States, or consigned to the United States for sale ; which were no part of the crates, cases, cartons, boxes, sacks, or coverings of any kind, or of any other costs, charges, or expenses inci- dent to placing the merchandise in condition packed ready for shipment to the United States ; which were not merchan- dise, which were of no intrinsic'commercial value, and which were not dutiable under Section 19 of the Act approved June 10, 1890, entitled "An Act to Simplify the Laws in Re- lation to the Collection of the Revenues "; nor otherwise dutiable. The collector erred in making said assessment, and the General Appraisers erred in sustaining them, to the amounts CUSTOMS AND REVENUE CASES. 929 indicated in this petition with respect to each of said entries. Wherefore your petitioner prays that said decisions of the Board of General Appraisers may be reviewed and reversed ; that your petitioner may recover said several sums illegally assessed against it, as hereinbefore stated, and its costs, and that it may have all other relief to which it may be entitled. X. & X., Attorneys for The A. B. Co. No. . Judgment. No. 737. Judgment in Customs Law Case (i). The Circuit Court of the United States for the District of , In re Application of A. B., Surveyor of Customs, in re C. D., Importer. This cause, coming on this day of , 1894, to be heard upon the application of A. B., surveyor of customs, and the return of the evidence and facts by the board of United States general appraisers, and also upon the evidence pro- duced on the part of the United States and on the part of the said C. D., importer, and the court hearing the argu- ments of counsel for the respective parties, and being fully advised in the premises, finds that the classification of the article in controversy herein as made by the said board of United States general appraisers is correct, and should be sustained, and that the said article is correctly classified as \state what],, under paragraph — :— , schedule , of the act of congress passed October i, 1890, entitled "An act to re- duce the revenue and equalize duties on imports, and for other purposes," and that the rate of duty imposed on said article is cents per . 93° CUSTOMS AND REVENUE CASES. I It is therefore ordered, adjudged, and decreed that the ap- plication of A. B., surveyor of customs, be and hereby is dis- missed, and that the said C. D. have and recover of the United States the sum of dollars, the amount of duty paid by him as importer in excess upon said importation of said article involved herein, and also costs in his behalf ex- pended herein, and that a copy of this judgment be certified to the attorney-general of the United States, according to law, to which finding the United States, by its attorney, J. H., excepts, and prays that the exception be noted of record, which is accordingly done. q. \y Circuit Judge, (i) For form of Petition, consult No. 8. No. 738. Application by Collector to Revise Decision of Board of Gen- eral Appraisers in Custom Case (i). The Circuit Court of the United States for the District of . In the matter of the application of the Col- lector of Customs at New York, for a review of the decision of the Board of Protest Nos. General Appraisers, as to the rate and 84097A amount of duty on certain merchandise imported by Victor Koechl, trading under 4175 the name and style of Schultz-Berge & Koechl, per " Elbe," January 12, 1895. To the Honorable the Circuit Court of the United States for the Southern District of New York : Your petitioner, the collector of customs for the collection district and port of New York, being dissatisfied with the de- cision made on the 23d day of July, 1895, ^y the Board of General Appraisers designated by the secretary of the treas- CUSTOMS AND REVENUE CASES. 93 1 ury for and on duty at said port, pursuant to the Act of Con- gress, approved June lo, 1890, entitled " An Act to simplify the laws in relation to the collection of the revenues," review- ing and reversing the decision of your petitioner as to the rate and amount of duty chargeable on certain " antitoxine," contained in two cases per entry No. 7781, marked E. M. L. and B., and Nos. 5215 and 5727, respectively, imported per " Elbe," January 12, 1895, and entered for consumption by Victor Koechl, trading under the name and style of Schultz- Berge & Koechl, respectfully makes application to this court and sets forth herein the errors of fact and law complained of, to wit : The said merchandise was classified and assessed for duty at 25 per cent, ad valorem under ^nd pursuant to the provi- sions of paragraph 59 of the Tariff Act of August 28, 1894, as a medicinal preparation, and the entry thereof was liqui- dated accordingly. The said owner and importer being dissatisfied with the decision assessing duty as aforesaid, gave notice within ten days after said liquidation and ascertainment of duty, setting forth the reasons of his objection thereto, claiming the said merchandise to be free of duty as '' vaccine virus," under paragraph 664, or free under paragraphs 367, 404 or 470 ; or if not free, then dutiable at 10 per cent, ad valorem under paragraph 16}^, or at 15 per cent, ad valorem, under para- graph 225 of said Tariff Act. Whereupon the invoices and all papers and exhibits con- nected therewith were duly transmitted to the said Board of General Appraisers, which board proceeding to hear and de- termine the questions of law and fact involved, reversed the collector's said decision in the premises. The record of their decision to this effect appears in a communication addressed to your petitioner under date of the 23d of July, 1895, a copy of which is hereto attached and made part hereof. And for the errors of law and fact in the decision of the 932 CUSTOMS AND REVENUE CASES. said board in this regard herein complained of, your petitioner states : First. That the said board were in error in holding that the merchandise in question is " vaccine virus " and accord- ingly exempt from duty under the provisions of said para- graph 664- of the Tariff Act of August 28, 1894. Second. In not holding the said merchandise to be a medic- inal preparation and dutiable at 25 per cent, ad valorem under paragraph 59 of said Tariff Act. Third. In reversing the decision of your petitioner and in sustaining the claim of the protestants. Accordingly, your petitioner respectfully prays this court to order the said Board of General Appraisers to return to the court the record and evidence taken by the said board, together with a certified statement of the facts involved in the case, and of their decision thereon, and thereupon to pro- ceed to review said decision and to determine the questions of law and fact involved in the same. S. R., Collector of Customs. (i) Taken from Koechl vs. U. S., 84 Fed. Rep. 448, 28 C. C. A., 458. See note to No. No. 739. Bond of Importer on Appeal from Board of General Ap- praisers to Circuit Court (i). Know all men by these presents, that I, John Francis Strauss, am held and firmly bound unto the United States of America in the sum of twenty-five dollars, to be paid to the United States of America; for the payment of which well and truly to be made, I bind myself, my heirs, executors and administrators, jointly and severally, by these presents. Sealed with my seal and dated the day of , in the year of our Lord one thousand nine hundred and . Whereas, A. B. Manufacturing Company has applied, or is about to apply, to the Circuit Court of the United States CUSTOMS AND REVENUE CASES. 933 for the District of , for a review of the questions of law and fact involved in certain decisions of the Board of United States General Appraisers, made upon the entry of certain rnerchandise imported by it per " Croma," , 190—. Now, therefore, the condition of this obligation is such that if the above named A. B. Manufacturing Company shall prose- cute said proceeding with effect and pay all damages and costs which shall be awarded against it therein, if it shall fail to make said proceeding good, then this obligation shall be void ; otherwise the same shall be and remain in full force and ef- fect. J. F. iSeal.'] Sealed and delivered and taken and acknowledged, this day of , before me. J. N., {^SeaLI Notary Public, County. (i) Taken from U. S. vs. Warren Chemical Mfg. Co., 84 Fed. Rep. 638, 28 C. C. A. soo. No. 740. Order for Return of Record by Board of General Appraisers to Circuit Court. [^Caption in Circuit Court.'] Upon reading and filing the annexed petition, and upon motion of R. X., attorney for the petitioner, it is Ordered, that the Board of United States General Ap- praisers, sitting at the port of New York, return to this court the record and the evidence taken by them in each of the above matters, together with a certified statement of the facts in- volved and their decisions thereon. No. 741. Return of the Board of General Appraisers to Circuit Court. The Circuit Court of the United States for the District of . 934 CUSTOMS AND REVENUE CASES. In the matter of the application of A. B. Bros., for a review of the decision of the Board Suit No. 2281. of U. S. General Appraisers, Return of the Board of U. as to the rate, etc., of duty S. General Appraisers to upon certain millet seed, im- the order of Hon. H. H., ported by them in the vessel Circuit Judge. and on the date named in the Dated New York, . original return herein. The Board of United States General Appraisers, sitting at New York, in response to the order of the court in the above matter, make the following return of the record and evidence taken by them in the above matter and of the facts involved therein, as ascertained by them. ( i ) They state that a letter, hereto annexed, marked Exhibit " A.," was received from the collector of customs at , submitting under the provisions of Section 14 of the Act of June 10, 1890, the protest marked Exhibit " B.," described as follows: Coil's Board Protestants. Vessel. Date of No. No. Entry. 1499 84,iSS-A A.B.Bros. "Bolivia" Oct. 1/94 On May , 189 — , two witnesses appeared before the board, and were examined in behalf of the importers. Their testimony is annexed as Exhibit " C." The sample referred to in said testimony as Exhibit " i " (see p. 5) is returned under another cover, marked " Sam- ple in Suit 2281." On August ; , 189 — , the board rendered their decision herein, a copy of which is annexed as Exhibit " D." A copy of G. A. 2085 referred to in Exhibit " D.," is an- nexed as Exhibit " E." [^Here follows the exhibits in full.'] And for a certified statement of the facts involved in said matter, as ascertained by them, the said board states that said facts are fully set forth in the decision aforementioned, CUSTOMS AND REVENUE CASES. 935 and that no other facts were ascertained by said board than such as are shown by said decision and other exhibits hereto attached, and to the original return herein. W. L., J. W., G. S., Board of U. S. General Appraisers. (i) This return must embody all the evidence considered in reaching their decision. In re Van Blankensteyn, 56 Fed. Rep. 474, 5 C. C. A. 579 ; in re Sternback, 44 Fed. Rep. 413. An insufficient return may be sent back for further description of ar- ticles. In re Dieckerhoff, 45 Fed. Rep. 23s; in re Blumlein, 45 Fed. Rep. 236; in re Downing, 45 Fed. Rep. 412. No. 742. Order to take Additional Testimony in the Circuit Court (i). The Circuit Court of the United States for the District of . In the matter of the A. B. Manufacturing Co. vs. No. . The United States. Upon the application of the above mentioned importer, by its attorneys, X. & X., Esqs., it is Ordered, that this action be referred to J. N., Esq., as an oiificer of the court, to take and return to the court such further evidence herein as may be offered by any of the per- sons or parties in interest within sixty days after the date of this order. (i) New evidence may be taken in the Circuit Court to overcome the presumption in favor of a finding of fact by the Board of General Ap- praisers. Apgar vs. U. S., 78 Fed. Rep. 332, 24 C. C. A. 113; Stern vs. U. S., ^^ Fed. Rep. 607 ; " Zante Currents," 73 Fed. Rep. 183 ; in re Kurscheedt Mfg. Co., 49 Fed. Rep. 633; aifirmed 54 Fed. Rep. 159, 4 C. C. A. 262; in re Muser, 49 Fed. Rep. 831. New evidence may be taken in Circuit Court, although none was put in before appraisers. Lesser vs. U. S., 89 Fed. Rep. 197. 93^ CUSTOMS AND REVENUE CASES. No. 743. IReport of Referee Appointed by Circuit Court to Take Tes- timony in Customs Case (i). The Circuit Court of the United States for the District of . In the matter of the application of the Col- lector of Customs at , as to certain I No. importations by A. B., per " Abyssinia," August . To the Circuit Court of the United States for the Dis- trict of : The undersigned, a general appraiser under the Act of June lo, 1890, to whom it was referred by this honorable court by an order made November , to take further evi- dence in the above entitled matter, do hereby return such fur- ther evidence taken by me pursuant to such order. Dated New York, . J. N., U. S. General Appraiser, as an Officer of the Court, (i) See note to No. 742. No. 744. Judgment in Customs Case Affirming Decision of tne Board of General Appraisers (i). [Caption.'] The above cause coming on for hearing and determination before this court, on the application of the collector of cus- toms for a review of the questions of law and fact involved in the decisions of the Board of U. S. General Appraisers herein, and on the return of the Board of General Appraisers of the record and evidence taken by them, with their certified statement of the facts involved therein, together with their decisions thereon, and on the evidence taken in this court. Now, after hearing H. C, Esq., U. S. attorney, on behalf of CUSTOMS AND REVENUE CASES. 937 the collector, for reversal, and R. X., counsel for the said im- porter, for affirmance, on motion of R. X., counsel for im- porter, It is ordered, adjudged and decreed that there was no error in said proceedings before said Board of Gen'eral Appraisers, and that their decisions herein be and the same are hereby in all things affirmed. (i) The Circuit Court has jurisdiction to hear and determine questions of law and fact in reviewing the decision of the Board of General Ap- praisers. U. S. vs. Klingenberg, 153 U. S. 93; U. S. vs. Yahn, 155 U. S. 109. Costs may be recovered against the United States in a proper cases. U. S. vs. Davis, 54 Fed. Rep. 147, 4 C. C. A. 251, but see contra, in re Chase, so Fed. Rep. 695. As to the effect to be given to the decision of the Board of General Ap- praisers see Belcher vs. U. S., 91 Fed. Rep. 975 ; Klipstein vs. U. S., 91 Fed. Rep. 520 ; Dana vs. U. S., 91 Fed. Rep. 522 ; Morris, etc, Exp. Co. vs. U. S. 94 Fed. Rep. 643 ; in re Crowley, 50 Fed. Rep. 465, affirmed 55 Fed. Rep. 283, 5 C. C. A. 109 ; in re Gerdav, 54 Fed. Rep. 143 ; U. S. vs. Buffalo Fuel Co., 78 Fed. Rep. 110, 24 C. C. A. 4. No. 745. Judgment Reversing Decision of Board of General Appraisers. \Capt%on.\ The above cause coming on for hearing and determination before this court on the application of the above named im- porter, for a review of the questions of law and fact involved in the decision of the Board of U. S. General Appraisers herein, on the return of the said board of the record and evi- dence taken by them, with their certified statement of the facts involved therein, together with their decision thereon, and on the return of the evidence taken before the Hon. J. N., Ref- eree, herein: Now, after hearing R. X., Esq., of counsel for the said im- porter, and H. C, Esq., assistant U. S. attorney, on behalf of the United States, it is Ordered, adjudged and decreed that there was error in the proceedings before the Board of General Appraisers, and that 938 CUSTOMS AND REVENUE CASES. their decision herein be and the same is hereby reversed; and it is further Ordered, adjudged and decreed that the merchandise, which is the subject of this proceeding, was properly free of duty under paragraph" 443, Tariff Act of August 27, 1894, as " all preparations except medicinal coal tar preparations and prod- ucts of coal tar, not colors or dyes, not specially provided for in this Act." No. 746. Judgment in Customs Case Affirming in Pan and Reversing in Part the Decision of the Board of General Appraisers. ICaption.^ The above cause coming on for hearing and determination before this court on the application of the above named im- porters for a review of the questions of law and fact involved in the decision of the Board of United States General Ap- praisers herein, on the return of the said board of the record and evidence taken by them, with their certified statement of the facts involved therein, together with their decision there- on, and on the return of the evidence taken before the Hon. J. N., Referee, herein: Now, after hearing R. X., Esq., of counsel for the said im- porters, and H. C, Esq., United States attorney, on behalf of the United States, it is Ordered, adjudged and decreed, that in the proceedings be- fore the Board of General Appraisers there was error in re- gard to certain black glass nailhead beads, and that their decision herein as to said articles be and the same is hereby re- versed; and it is further Ordered, adjudged and decreed, that the said black glass nailhead beads were properly dutiable at only 10 per cent, ad valorem under paragraph 445, Tariff Act of October i, 1890, CUSTOMS ANP REVENUE CASES. 9^9 as glass beads, loose, unthreaded or unstrung; and it is fur- ther Ordered, adjudged and decreed, that as to all the remaining merchandise involved in this proceeding, there was no error in the proceedings before the Board of General Appraiser^, and that their decision herein, except as aforesaid, is hereby- affirmed. No. 747. Information. Seizure under the Revenue Laws. (General Form.) The District Court of the United States, for the District of . Before the Honorable G. W., Judge. On the day of , in the year of our Lord one thou- sand eight hundred and , comes J. H., as attorney of the United States for the said district of , in a cause of seizure on land [or as may be\ under the revenue laws of the United States, and informs the court ; That on the day of , in the year of our Lord one thousand, eight hundred and , A. B., collector of the cus- toms for the port and collection district of , seized pn land [or, vessel, or as may de], within the said district, the property described as follows : [here set forth the place of seiz- ure and a list of the articles seized\ the property above men- tioned, said to belong to C. D., and now the said A. B. has the same in custody within the district of afore- said, as forfeited to the United States for the following causes : [Here state the several grounds of forfeiture in separate ar- ticles and proceed^ And the said attorney of the United States, on behalf of the United States, says that all and singular the premises are true, and that by reason thereof, and by force of the statute in such case made and provided, the aforementioned 940 CUSTOMS AND REVENUE CASES. property, goods, wares, and merchandise, as hereinbefore par- ticularly specified, became and are forfeited to the United States as in said statute provided. Wherefore he prays that the usual process and monition of this honorable court issue in this behalf; and that all persons interested in the said property, goods, wares, and merchandise, etc., may be cited and admonished in general and special to answer the premises; and, all due proceed- ings being had thereon, that, for the causes aforesaid, and others appearing, the said property, goods, wares, and mer- chandise, etc., as before set forth, be condemned by the defi- nite sentence and decree of this honorable court as forfeited to the use of the United States, according to the form of the statutes of the United States in such case made and pro- vided. J. H., United States Attorney for the district of . No. 748. Information — Admiralty. For form of Libel of Information, see form under title *' Admiralty." No. 749. Libel of Information — Seizure of a Distillery (i). The United States of America, „ ^. . . No. . District of , ss. In the District Court of the United States within and for the District of , of the Term of , i8 — . The information of J. H., United States Attorney within and for the district of , who prosecutes in this be- half for the said United States, and being present here in court in his own proper person, doth disclose and make known to the court; CUSTOMS AND REVENUE CASES. 94 1 That W. T., Esquire, deputy collector of internal revenue for the first collection district of the state of , heretofore, to wit, on the day of , i8 — , on land, at , county of , and state of , and within said district of , seized the following described property for a forfeiture incurred under the laws of the United States, that is to say, one two-story stone and brick building, 60 by 40 feet, used as a distillery; a one-story frame building, 43 by 23 feet, used as a cistern and drawing-off rooms ; a one-story frame building, 15 by 30 feet, used as a warehouse; also, all that certain lot of ground situated in the city of , county of , and state of , in S. W.'s subdivision, recorded in plat book No. , page , county records, being part of section , township , fractional range , of the purchase, commencing at a point, etc. [set forth de- scription in fuU\ and also the following \here state in full contents of the buildings and property seized\ and now has the same in custody within said district of , as for- feited for the following causes : That prior to said seizure taxes were imposed by the pro- vision of law upon the said distilled spirits, and the same being so subject to the payment of taxes as aforesaid, were found by the said W. T., deputy collector, in the possession and custody and with the control of some person or persons to said attorney unknown, for the purpose of being sold and removed by such person or persons in fraud of the in- ternal revenue law, and with design to avoid payment of said taxes against Section 3453 of the Revised Statutes of the United States. Second. That the said corn, rye, etc., then and there be- ing articles of raw material, were found in the possession of some person or persons to the said attorney unknown, the said person or persons then and there intending to manu- facture the same into articles of a kind subject to tax, for the purpose of fraudulently selling such manufactured arti- cle, and with design to evade the payment of said taxes, 942 CUSTOMS AND REVENUE CASES. against the aforementioned, Section 3453 of the Revised Stat- utes of the United States. Third. That said tools, implements, instruments, and personal property were found in the place, or building, and within certain yards and enclosures where said distilled spirits and said raw material were found as aforesaid, where- by they became liable to forfeiture by the provisions of the aforementioned Section 3453 of the Revised Statutes of the United States. Fourth. That prior to said seizure, tax was imposed on said goods and commodities, consisting of distilled spirits, and said material, and utensils, and vessels, then and there being materials, utensils, and vessels proper, and intended to be made use of for and in the making of such goods and commodities taxed as aforesaid, were removed, and were deposited and concealed with intent to defraud the United States of such tax, or some part thereof, against Sec- tion 3450 of the Revised Statutes of the United States afore- said. Fifth. That the carts, wagons, and conveyances and said horses and other animals were used in the removal and for the deposit and concealment of said goods and commodities consisting of distilled spirits, said goods and commodities then and there being forfeited to the United States, against the Section 3450 aforementioned. Sixth. The said distilled spirits and wines, and said stills and other apparatus, the still and other apparatus then and there being fit and inteuded to be used for the distillation of spirits within the meaning of the internal revenue laws, were owned by some person or persons to said attorney unknown, who engaged in and carried on the business of a distiller with intent to defraud the United States of the tax on the spirits distilled by such person or persons, against Section 3381 of the Revised Statutes of the United States aforesaid. Seventh. That the said distilled spirits, wines, and per- sonal property were found in a certain distillery and in a CUSTOMS AND REVENUE CASES. 943 certain building, room, yard, and enclosure connected there- with and used with and constituting a part of the prem- ises, and that some person or persons to the said attorney unknown, did, in said distillery, carry on then and there the business of a distiller, with intent to defraud the United States of the tax on the spirits distilled by said person or persons, against Section 3281 of the Revised Statutes of the United States aforesaid. Eighth. That some person or persons to the said attorney unknown, then and there having a certain right, title, and interest in the lot and tract of land on which said distillery was situate, did knowingly suffer and permit some person or persons to said attorney unknown, to carry on the business of a distiller upon said premises, and did connive at the said person or persons carrying on the business with intent to defraud the United States of the tax on the spirits distilled by such person or persons, against Section 3381 of the Revised Statutes of the United States aforesaid. Ninth. That said personal property was owned by and found in the possession of some person or persons to said attorney unknown in a certain building, yard, and enclostire, which said person or persons permitted and suffered the said building, yard, and enclosure to be used for the purpose of ingress and egress to and from said distillery situate as afore- said in aforesaid, wherein said person or persons to said attorney unknown, did carry on the business of a distiller with intent to defraud the United States of the tax on the spirits distilled by such person or persons, whereby said per- sonal property, and the right, title, and interest of said person or persons so permitting and suffering said premises to be used as aforesaid, became forfeited to the United States under and by virtue of the aforementioned Section 3281 of the Revised Statutes of the United States. Tenth. That some person or persons to said attorney unknown, being engaged in carrying on the business of a distiller at the said distillery where said still and other appa- 944 CUSTOMS AND REVENUE CASES. ratus were situated, did defraud and attempt to defraud the United States of the tax on the spirits distilled by him and them, and that the, said distillery and distilling apparatus were used by him and them, and said distilled spirits and raw material for the production of distilled spirits, were found in said distillery and on the distillery premises against Section 3357 of said Revised Statute of the United States. And the said attorney of the United States, on behalf of the United States, saith that all and singular the premises are true, and that by reason thereof and by force of the statute in such case made and provided, the aforementioned property, goods, wares, and merchandise as' hereinbefore set forth be- came and are forfeited to the use of the United States as in said statute provided. Wherefore he prays that the usual process and monition of this honorable court issue in this behalf, and that all persons interested in said property, real estate, goods, wares, etc., may be cited and admonished in general and special to answer the premises, and that all due proceedings being had thereon, that for the causes aforesaid and others appearing, that said property, real estate, goods, wares, etc., before set forth, be condemned by the definite sentence and decree of this hon- orable court as forfeited to the use of the United States, according to the form of the statute of the United States in such case made and provided. J. H., United States Attorney. (i) Taken from the record of the U. S. vs. One Distiller and other property, and sustained in the District Court of the United States for the Southern District of Ohio. Where a seizure is made on land, the suit, though in the form of a libel of information, is an action at common law, and the claimants are entitled to a trial by jury. Morris' Cotton, 8 Wall. 511; Confiscation Cases, 7 Wall. 462. CUSTOMS AND REVENUE CASES. 945 No. 750 Libel of Information — Seizure for Custom Duty. The United States of America, District of , ss. The District Court of the United States for the District of . On the day of , in the year of our Lord one thou- sand nine hundred and , comes J. H., attorney of the United States for the District of , to prosecute a civil action in which the United States is concerned, and in- form the court : That the United States of America hereby brings suit against certain goods, wares and merchandise, to wit, five hundred and eighty-one diamonds advanced in condition and value from their natural state by cutting and other process and not set, contained in three packages respectively, containing one hundred and six, and eighty-eight, and three hundred and eighty-seven of said diamonds, which said goods, wares and merchandise are at , within the Division of the District of , in the custody of one T. R., Esq., as an officer of the customs of the United States, to wit, collector of the district of , which said goods, wares and merchan- dise one E. L., on, to wit, the day of , in the year of our Lord one thousand nine hundred and , within said district and division, being then and there an officer of the United States, to wit, special employe of the treasury depart- ment of the United States, and duly authorized and empow- ered in that behalf, did, at, to wit, the city of , in said district of , seize on land and secure as liable to seizure and forfeiture to the United States, by virtue of certain Acts of Congress of the United States respecting the revenue, and did deliver to the said T. R., collector, as aforesaid, and that the said collector, having hitherto retained the said goods, wares and merchandise in his possession and custody at aforesaid, as forfeited as aforesaid, has caused this suit to be 946 CUSTOMS AND REVENUE CASES. commenced upon the said seizure and to be prosecuted for the said forfeiture, and the said attorney of the United States, now here prosecuting for the United States in that behalf, al- lege and articulately propound, as grounds or causes for the said forfeiture : That, on, to wit, the day of , in the year of our Lord one thousand nine hundred and , the said goods, wares and merchandise were, by one L. B., late of New York, in the state of New York, fraudulently and knowingly im- ported and brought into the United States, contrary to law, to wit, at the city of , in the Division of the - District of , from the province of Ontario, Dominion qf Canada, said goods, wares and merchandise having been so im- ported contrary to law, in that they were, when so imported and brought into the United States subject by law to the pay- ment of a customs duty to the United States, and in that the said goods, wares and merchandise were imported and brought into the United States, as aforesaid, clandestinely and secret- ly and without an entry thereof, being made at the custom house of the United States, as required by law, and without the payment of the duties thereon or any part thereof, and with intent to defraud the United States of its lawful revenue ; contrary to the statutes of the United States in such case made and provided. Whereby and by force of the statutes of the United States in such case made and provided, said goods, wares and merchandise became and are forfeited to the United States. And the said United States attorney, on behalf of the United States, say that all and singular the premises are true, and that, by reason thereof and by force of the statutes in such case made and provided, the aforementioned property, goods, wares and merchandise became and are forfeited to the United States. Wherefore, the said attorneys pray that the usual monition and process of this honorable court may issue in this behalf, and that all persons interested in the said property, goods, CUSTOMS AND REVENUE CASES. 947 wares and merchandise may be cited and admonished in gen- eral and in special to answer the premises, and all due pro- ceedings being had thereon, for the causes aforesaid and others appearing the said property, goods, wares and merchandise be condemned by the definite sentence and decree of this honor- able court, as forfeited to the use of the United States, accord- ing to the form of the statutes of the United States in such case made and provided. J. H., United States Attorney for the District of . (l) Where a seizure is made on land, the suit, though in the form of a libel of information, is an aciion at common law and the claimants are en- titled to a trial by jury. Confiscation Cases, 7 Wall. 454, Morris' Cotton, 8 Wall. sil. No. 751. Writ of.Seizure. District Court of the United States for the District of , ss. The President of the United States of America to the Marshal of the District of , Greeting : Whereas, .a libel of information has been filed in the Dis- trict Court of the United States for the District of , on the day of , in the year of our Lord one thousand nine hundred and by the' United States of America against five hundred and eighty-one cut and unset diamonds in the possession and custody of one T. R., Esq., as an officer of the customs of the United States at the city of , in said district, claimed as forfeited to the said United States for fraudulent importation, for the reasons and causes in the said libel alleged and mentioned, and praying the usual process and monition of the said court in that behalf to be made, and that all persons interested in the said 581 diamonds may be cited in general and special to answer the premises, and all proceedings being had that the said 581 diamonds may, for the causes in the said libel mentioned, be condemned and sold to pay the de- mands of the libelant. 948 CUSTOMS AND REVENUE CASES. You are therefore hereby commanded to attach the said five hundred and eighty-one diamonds and to detain the same in your custody until the further order of the said court re- specting the same, and to give due notice to all persons claim- ing the same, or knowing, or having anything to say why the same should not be condemned and sold, pursuant to the prayer of the said libel, that they be and appear before the said court, to be held in and for said District of , on the first Tuesday of next, at lo o'clock of the fore- noon of the same day, if the same shall be a day of jurisdic- tion, otherwise on the next day of 'jurisdiction thereafter, then and there to interpose a claim for the same and to make their allegations in that behalf. And what you shall have done in the premises, do you then and there make return there- of, together with this writ. Witness, the Hon. H. S., Judge of the District Court of the United States for the District of , at the Dis- trict Court Room, in the city of , in the said district, this day of , in the year of our Lord one thousand nine hundred and , and the independence of the United States of America the one hundred and twenty . D.J., Clerk of the District Court of the United States for the District of . [Return of Marshal :] District of , ss. I hereby certify and return, that by virtue of the within writ, I did on the day of , A. D. , seize the within named 581 diamonds at , and now have the same in custody, to await the further order of the court in the premises. R. B., United States Marshal for the District of . PATENTS FOR INVENTION. No. 752. Bill in Equity for Infringement of a Patent (i). \Caption^ as in No. 207.] To the Honorable, the Judges of the Circuit Court of the United States in and for the District of : A. B., residing at , in the state of , and citizen of said state, brings this, his bill against C. D., of , in the state of , and citizen of said state, and inhabitant(3) of the district of , and thereupon your orator com- plains, and says : That heretofore, on the day of , 1894, A. B., of , was the true, original, and first inventor of a certain new and useful improvement in , not known or used in this country, and not patented or described in any printed publication in this or any foreign country before his said in- vention or discovery thereof, and not more than two years prior to his hereinafter recited application for a patent therefor, and not in public use or on sale for more than two years prior to his hereinafter recited application for a patent therefor (3) ; and no application for a foreign patent for said invention was filed more than twelve months prior to the filing of the application in this country (4). And your orator further shows unto your honors that the said A. B. being, as aforesaid, the inventor of the said im- provement, and being a citizen of the United States, made application to the commissioner of patents for letters patent, in accordance with the then existing acts of congress, and having duly complied in all respects with the conditions and requisitions of said acts, on the day of , 1894, let- ters patent of the United States, signed, sealed, and executed in due form of law, for the said invention or discovery, were issued to him and numbered . 949 950 PATENTS FOR INVENTION. Whereby there was secured to him, his heirs, executors, administrators or assigns, for the term of seventeen years from the day of ,1894, the full and exclusive right of making, using, and vending to others to be used, the said improvement, which said letters patent are now of record in the patent ofl&ce of the United States, and a certified copy of which is ready here in court to be produced. And your orator further shows unto your honors that by virtue of the premises he became, and now is, the sole and exclusive owner of said letters patent, and the inventions and improvements described therein, and of all the rights and privileges granted ^and secured, or intended to be granted and secured thereby. And that since he became the owner thereof, as aforesaid, he has invested and expended large sums of money, and he has been to great trouble in and about said invention, and for the purpose of carrying on the business of manufacturing and selling machines containing the said invention, and making the same profitable to him- self and useful to the public ; and that said invention has been and is of great benefit and advantage ; and that a large number of such machines were made according to said in- vention, and sold by your orator to great advantage to the public ; and that the public have generally acknowledged and acquiesced in the aforesaid rights of your orator ; and your orator believes that he will realize and receive large gains and profits therefrom if infringements by said defendant and his confederates shall be prevented. Yet the said defendant, well knowing the premises and the rights secured to your orator, as aforesaid, but contriving to injure your orator, and deprive him of the benefits and ad- vantages which might and otherwise would accrue unto him from said invention, after the issuing of the letters patent, as aforesaid, and before the commencement of this suit, did, as your orator is informed and believes, without the license or allowance, and against the will of your orator, and in viola- tion of his rights, and in infringement of the aforesaid letters patent, within the district of , and elsewhere in the BILLS IN EQUITY. 95 1 United States, unlawfully and wrongfully, and in defiance of the rights of your orator, make, construct, use, and vend to others to be used, the said invention, and did make, con- struct, use, and vend to others to be used, machines made according to, and employing and containing said in- vention, and that he still continues so to do ; and that he is, threatening to make the aforesaid machines in large quantities, and to supply the market therewith, and to sell the same. All in defiance of the rights acquired by and secured to your orator as aforesaid, and to his great and irreparable loss and injury, and by which he has been and still is being de- prived of great gains and profits, which he might and other- wise would have obtained, and which have been received and enjoyed, and are being received and enjoyed, by the said defendant by and through his aforesaid unlawful acts and doings. And your oratorjfurther shows unto your honors, on infor- mation and belief, that said defendant has sold large quan- tities of said machines, and has a large quantity on hand, which he is offering for sale, and has made and rea- lized large profits and advantages therefrom; but to what extent, and how much exactly, your orator does not know, and prays a discovery thereof. And your orator says that the use of the said invention by said defendant, and his preparation for and avowed determination to continue the same, and his other aforesaid unlawful acts, in disregard and defiance of the rights of your orator, have the effect to and do encourage and induce others to venture to infringe said patent, in disregard of your orator's rights. And your orator further shows unto your honors that he has caused notice to be given to said defendant of said, (in- fringements, and of the rights of your orator in the premises, and requested him to desist and refrain therefrom ; but he disregarded said notice, and refused to desist from said in- fringements, and still continues to make and sell said pat- ented machines. 952 PATJENTS FOR INVENTION. And forasmuch as/your orator can have no adequate relief except in this court, to the end that the defendant may be compelled to account for and pay over the income thus un- lawfully derived from the violation of the rights of your orator, as above, and be restrained from any further violation of said rights, your orator prays that your honors may grant a writ of injunction, restraining .the defendant from any fur- ther construction, or sale, or use in any manner of said pat- ented machines, or any part thereof, in violation of the rights of your orator, as aforesaid, and that the '- machines now in possession or use of the said defendant may be destroyed or delivered up to your orator for that purpose. And also, that your honors, upon the entering of a decree for infringe- ment, as above prayed for, may proceed to assess, or cause to be assessed under your direction, in addition to the profits to be accounted for by the defendant as aforesaid, the damages your orator has sustained by reason of such infringement, and that your honors may increase the actual damages so assessed to a sum equal to three tiines the amount of such assessment, under the circumstances of the willful and un- just infringement by said defendant, as herein set forth. And your orator prays also for a provisional or preliminary injunction, and for such other relief as the equity of the case may require, and as to your honors may seem meet. May it please- your honors to grant unto your orator a writ of injunction conformable to the prayer of this bill, and also a writ of subpoena of the United States of America, directed to the said C. D., and commanding him to appear and an- swer unto this bill of complaint, and to abide and perform such order and decree in the premises as to the court shall seem meet, and be required by the principles of equity and good conscience. A. B. X. & X., Solicitors for Plaintiff (5). R. X., of Counsel (5). ^Verification. See No. 279.] BILLS IN EQUITY. 953 (1) The plaintiff may seek relief at law for damages; but the most common method is by bill in equity for discovery and injunction. As to jurisdiction of a court 9f equity in patent cases, see Robinson on Patents, Sec. 1061 et seq., and cases cited in notes. ' The circuit courts have original jurisdiction of patent suits (R. S., Sec. 629, clause 9), irrespective of the value of the matter in dispute. Foster's Fed. Prac, Sec. 15; Miller-Mayee Co. vs. Carpenter, 34 Fed. Rep., 433. But see U. S. vs. Mooney, 116 U. S., 104, 107. As to commencement of bill, see 20th Rule in Equity; and as to necessary allegations in bill, see Robinson on Patents, Sec. 1106 et seq. See also Foster's Fed. Prac. Sec. 77. (2) The bill must allege that the defendant is an inhabitant of the district within which the suit is brought. See Robinson on Patents, Sec. 933, note 2; Desty's Fed. Proc, Sec. 87; Act of March 3, 1887, as amended, 25 Stat, at L., 433, and Foster's Fed. Prac, Sec. 22. The bill may aver in case the defendant is a non-resident of the dis- trict, that he has committed acts of infringement and has a regular and established place of business within the district. Act of March 3, 1897, 29 Stat at L. 695. (3) It has been held that bill was demurrable where it did not allege that the invention was not in public use, or on sale, for more than two years prior to the application. See R. S., Sec. 4886; Coop vs. Institute, 47 Fed. Rep., 899; Overman Wheel Co. vs. Elliott Cycle Co., 49 Fed. Rep., 859; Hanlon vs. Primrose, 56 Fed. Rep. 600. (4) See Act of March 3, 1897, 29 Stat, at L. 692, and Act of March 3, 1903, amending R. S. Sec. 4887. (5) Must be signed by counsel. See 24th Rule in Equity. Dwight vs. Humphreys, 3 McLean, 104, and Roach vs. Halings, s Cranch, C. C, 6iy. See also note to No. 67. The following allegations should be inserted in the bill of complaint \_see No. 752], according to the facts: No. 753. Where an Assignment of the Patent has been made before bringing the Suit(i). And your orator further shows unto your honors that on or about the day of , 1893, the said by an assignment in writing, and on that day sold, assigned, and transferred unto the [plaintiff^ the entire right, title, and 954 PATENTS FOR INVENTION. interest in and to said letters patent and invention, together with all rights of recovery for past infringements arising under said letters patent, which said assignment was duly- recorded in the patent office of the United States. (i) If more than one assignment of the patent has been made, it will be necessary to repeat this allegation in the bill until the chain of title is complete. No. 754, ^Vhere a Reissued Patent is Sued On. (i) And your orator further shows to your honors that the [patentee] has, for good and lawful cause, surrendered said letters patent to the commissioner of patents, and having made due application therefor, and having in all things com- plied with the acts of congress in such case made and -pro- vided, they were canceled, and new letters patent, which were marked "Reissue No. ," were, on the day of , 1894, in due form of law, issued to \J>atentee\ which said mentioned reissued letters patent are of record in the patent office of the United States, and a certified copy of which are ready here in court to be produced. (i) As to necessary allegations in bill on reissued patent, see WoUensak vs. Reiber, 115 U. S. 96; Spaeth vs. Barney, 22 Fed. Rep. 828. See also observation of Mr. Justice Brown in Eby vs. King, 158 U. S. 373 ; McCormick Harvester Machine Co. vs. Aultman, 169 U. S. 606. No. 755. Where the Suit is brought by the Administrator of a Patentee. And your orator further shows unto your honors that the [patentee] died intestate on or about the day of , 1894, and that his son, S. B., was, on or about the day of , 1894, duly appointed and qualified as administrator of the estate of the said , deceased, and thus became, as such administrator, possessed of the rights granted to the said under and by virtue of said letters patent. BILLS IN EQUITY. 955 No. 756. An Allegation Setting Forth Prior Adjudication. And your orator further shows unto your honors that in the month of , 1894, S. W., manufacturer of , in the city of , state of , was manufacturing and selling , embodying the invention set forth in and in infringement and violation of the rights of your orator under the said let- ters patent No. ; that on the day of , 1894, the said A. B. brought his bill in equity in the circuit court of the United States for the district of , against the said S. W., and in said suit complained that the defendant had infringed and threatened the further infringement of the said letters patent No. . [^fVken the fact is true, add here. And that he thereupon moved the court for a prelim- inary injunction therein ; that the said motion came up to be heard in said court before the Hon. J. S., judge of the circuit court, on the day of , 1894, on affidavits and proofs filed by the respective parties, and was argued by counsel, to wit: [here name the counsel for the respective parties^ , and that upon consideration of said proofs and arguments the court, on the day of 1894, ordered an injunction as prayed for, restraining the defendant from infringing the said letters patent No. , and the said injunction was accord- ingly granted and issued] ; that the said defendant filed his answer to the _said bill of complaint, and the said cause came on to be heard on pleadings and proofs, and was argued on the day of , 1894, before the Hon. J. S., judge of the circuit court, by counsel for the respective parties, viz. : [name theni], and on the day of , 1894, the court ordered a decree for the plaintiff, affirming the validity of the said letters patent No. , and a perpetual injunction as prayed for, restraining the defendant from infringing said letters patent, and said perpetual injunction was accordingly granted and issued. 956 PATENTS FOR INVENTION. No. 757. A Bill in the Nature of a Supplemental Bill. Allegation when Patent has been Assigned pending Suit (i). And your orator further shows unto your honors that the said A. B., being vested with the title as aforesaid, and being advised that the said C. D. had infringed and was continuing to infringe upon said letters patent in this district hereto- fore, to Tfpi: on or about the day of , X894, filed his bill in equity in this court against the said C. D. (being bill in equity No. ), wherein he shows the premises set forth herein, and charged such infringement of said letters patent by said defendant and of the rights therein vested in the said A. B., and prayed an injunction, and an accounting, and other suitable relief in respect thereto, as are more fully set forth in the bill of complaint in said cause now on file. And your orator further shows unto your honors that pending the said suit, viz. : that on or about the day of , 1894, the said A. B. transferred his entire right, title^ and interest in and to the said letters patent No. , and in and to all rights of action and recovery for past infringe- ments thereof to your orator, S. T. (3), and a copy of which said assignment was duly recorded in the patent office of the United States ; and that your orator now holds the entire title thereto, and to all rights of action for past infringe- ment, as well as for the future infringement arising there- under, for his own use and behoof, and for the use and behoof of his legal representatives, to the full end of the term for which said letters patent are or may be granted, as fully and entirely as the same would have been held and enjoyed by the said A. B. had this assignment not been made. ( 1 ) As to when such bill is proper, and the necessary allegations, etc., see Robinson on Patents, Sec. 1122 ; Beach's Modern Equity Prac, Sec. 512; 57th Rule in Equity; Desty's Fed. Proc, Sec. 11 72; Foster's Fed. Prac, Sec. 191, ei seq. (2) S. T. becomes the plaintiflF in the supplemental bill, in place of A. B., the plain tiif in the original bill. BILLS IN EQUITY, 957 No. 758. Bill to Cancel an Interfering Patent (i). [Proceed as in No. 752 to the end of paragraph four, and continue as follows ;] And your orator further shows unto your honors that he is the sole and exclusive owner of the said and heretofore re- cited letters patent, and the inventions and improvements de- scribed therein, and of all the rights and privileges granted and secured or intended to be granted and secured thereby. And your orator further shows unto your honors that sub- sequently to the issue of his said letters patent aforesaid, to wit: On or about the day of , 1893, defendant, C. D., wrongfully made application in the patent office of the United States for letters patent for the improvement in ten- sion devices for fence machines invented and patented by your orator, as aforesaid, and that upon proceedings had upon the application of C. D., letters patent No. , dated , were procixred to issue from the said patent office, pur- porting to grant to the said C. D., his successors or assigns, for the full term of seventeen years from the said , the full and exclusive right to make, use, and vend the aforesaid ten- sion device for fence machines, being in fact the invention of your orator, and the same invention which was described and claimed in his aforesaid letters patent No. , as will more fully appear from a comparison of the said letters patent No. , granted your orator on , and the said letters patent No. , granted said C. D., on , a duly certified copy of which is ready here in court to be produced. \_I/ it be true, say i] And your orator further shows unto your honors, upon information and belief, that said applica- tion of defendant, C. D., was filed at the instance of the R. C. Co., one of the defendants herein; that the proceed- ings resulting in the grant of said C. D. patent No. , were conducted by and at the expense of the said R. C. Co., and that the said R. C. Co. claims some interest therein and thereunder. 958 PATENTS FOR INVENTION. And your orator further shows unto your honors that both prior to and subsequently to the grant of his letters patent aforesaid he has investeid and expended large sums of money and has been to great trouble in and about said invention, for the purpose of carrying on the business of manufactur- ing tension devices for fence machines, and making the same profitable to himself and useful to the public, and that the said invention has been and is of great benefit and advan- tage, and that a large number of tension devices for fence machines has been made according to said invention and sold by your orator to great advantage to the public. And your orator further shows unto your honors that the defendants are asserting title under said letters patent No. , granted defendant, C. D., as aforesaid, and are claiming thereunder the exclusive rights granted and secured to your orator by said letters patent No. ; that the said defend- ants thereby have been and are inflicting great damage and injury on your orator, and will, if said wrongful acts shall not be enjoined and restrained by your honors, greatly and irrep- arably damage your orator. And forasmuch as your orator can have no adequate relief except in this court, to the end that the said interfering let- ters patent granted C. D , as aforesaid, may be decreed by this court to be invalid, inoperative, and void, and may be ordered to be canceled, annulled, and set aside, and that the said C. D. (and the R. C. Co.) may be required to answer and disclose on oath the names of all persons whomsoever inter- ested in said letters patent, or in the working of the said in- vention claimed under the same (or connected with the said R. C. Co.), in the said violation of your orator's rights, in order that said persons may be made parties to this proceed- ing, and that the said C. D. (and the R. C. Co., its officers), associates, agents, and employees may be enjoined and re- strained both provisionally and perpetually from asserting any right under the said letters patent granted C. D. as afore- said, or in or under the invention purporting to be secured BILLS IN EQUITY. 959 thereby, your orator prays for a provisional or preliminary in- junction herein, and that the said defendants be required to appear and answer hereto, and for such other and further re- lief as the equity of the case may require, and as to your honors may seem meet. May it please your honors to grant unto your orator a writ of injunction, conformable to the prayer of this bill, and also a writ of subpoena of the United States of America, directed to the said C. D. (and the R. C. Co.), and commanding him [them], (and the officers of the R. C. Co.) to abide and perform such order and decree as to the court may seem meet, and be required by the princi- ples of equity and good conscience. X. & X., Solicitors for Plaintiffs. (i) R. S. Sec. 4918. Palmer Pneumatic Tire Co. vs. Lozier, 90 Fed Rep. 732, 33 C. C. A. 255. No. 759. Bill to Compel Issue of Patent (i;). [Caption as in No. 207.] A. B., of the city of , in the state of , and a citizen of said state, brings this bill against C. D., of the city of , in the state of , and a citizen of said state, and an inhab- itant of the district aforesaid. And thereupon your orator complains and says that hereto- fore, and before the day of , 1894, but not more than two years before said date, the said A. B., being a citizen of the United States, was the true, original, and first inventor of certain new and useful improvements in machines, not known or used before said invention, and not at the time of his application for patent therefor, as hereinafter set forth, in public use or on sale for more than two years, which in- vention comprised, among other things, generally [here set forth the invention in general terms, and continue as follows\. That the said invention was more fully and specifically embraced in the several claims of the application for a patent 960 PATENTS FOR INVENTION. filed in the patent office of the United States by A. B., in- cluding those hereinafter recited. That on or about the day of , 1894, the said A. B., being the inventor as aforesaid, and a citizen of the United States, made application to the commissioner of patents for letters patent of the United States for so much of the afore- said invention as is embraced in, among others, the claims thereof, more particularly hereinafter mentioned, said applica- tion being made in accordance with the then existing acts of congress, and said applicant duly complying in all respects with all the requirements of the law in such case made and provided, and the said application included among others the following claims, as will more fully appear by a duly authenti- cated copy thereof, ready here in court to be produced, to wit: [here set forth in full applicanV s claims in controversy]. That the said A. B., having, prior to the aforesaid applica- tion, exhibited said invention to C. D., of the city of , in the state of , and said C. D., seeking surreptitiously to appropriate the aforesaid invention, or so much thereof as is embraced in 'the claims hereinbefore recited, unjustly and unlawfully filed in the patent office of the United States an application therefor, wherein he falsely alleged himself to be the inventor thereof, which said application was filed on or about the day of , 1894. That the said application contained claims covering the aforesaid invention of A* B. in the hereinbefore recited claims of his application, as will more fully appear from the patent issued thereupon hereinafter particularly mentioned, and a duly authenticated copy is ready here in court to be produced. That thereupon the commissioner of 'patents withheld the allowance of the aforesaid claims, and declared an interfer- ence between the said A. B.'s application and the said C. D.'s application, including in said interference the subject-matter hereinbefore stated, and more particularly embraced in the . several aforesaid claims of said A. B.'s application. BILLS IN EQUITY. 96 1 That the said A. B. duly prosecuted his aforesaid applica- tion and claims, furnishing proofs establishing the above- mentioned facts, and complying in all respects with the pro- visions of the law. That upon the hearing of the said interference before the examiner of interferences, the issues were, as your orator submits, erroneously found by the said examiner in favor of the said C. D. That thereupon an appeal was taken by the said A. B. to the appeal board, otherwise known as the board of- exam- iners-in-chief, the said board having heard the same, reversed the decision of the examiners of interference, and awarded priority to the said A. B. Tiat thereupon an appeal was taken to the commissioner of patents of the United States in person, who, as your orator submits, erroneously, and contrary to law and the evidence, reversed the decision of the appeal board and awarded priority to the said C. D., whereupon a patent embracing the aforesaid subject of interference was issued to the said defend- ant, C. D., under the date of , 1894, No. , and the claims in the said application of the said A. B., above set forth, . were finally rejected by the patent office of the United States, as will more fully appear by duly authenticated copies of said application and of said letters patent No. , and of said proceedings in the patent office of the United States, ready here in court to be produced. That the commissioner of patents has refused and still refuses to grant letters patent upon the aforesaid A. B.'s appli- cation for the invention embraced in the above-recited claims, though your orator is lawfully entitled thereto, and is the sole owner of all right, title, and interest in and to his said inven- tion, and in and under his said application. And forasmuch as your orator can have no adequate relief except in this court, he brings this bill under and in accordance with the provisions of the statute in this case made and provided, and prays your honors to adjudge and 962 PATENTS FOR INVENTION. decree that A. B. is entitled to receive letters patent of the United States for his aforesaid invention, as specified in the before-recited claims of his said application. That yonr honors may adjudge the said A. B. to be the first true and original inventor of the said improvements in machines, set forth in and forming the issues of inter- ference hereinbefore mentioned in the claims rejected in the before-mentioned application of A. B., and decree that due letters patent therefor be issued to your orator, and for such other and further relief as equity may require, and as to your honors may seem meet. May it please your honors to grant unto your orator a decree in conformity with the prayer of this bill, and a writ of subpoena of the United States, directed to the said C. D., and commanding him to appear and answer unto this bill of complaint, and abide and perform such order and decree in the premises as to the court shall seem meet, and be required by the principles of equity and good conscience. \_Signature and Verification. See Nos. 278 and 279. J (l) R. S. sec. 4915 ; Christy vs. Seybold, 55 Fed. Rep. 69, 5 C. C. A. 33; Wheaton vs. Kendall, 85 Fed. Rep. 666 ; New York Belt. & Pack. Co. vs. Sibley, 15 Fed. Rep. 386; Minneapolis Harv. Works vs. McCormick Harv. Machine Co., 28 Fed. Rep. 565; Vermont Farm Mach. Co. vs. Marble, 20 Fed. Rep. 117. See also Hill vs. Wooster, 132 U. S. 693 ; Gandy vs. Marble, 122 U. S. 433- BILLS IN EQUITY. 963 No. 760 Bill for Contributory Infringement of a Patent. [Caption.] To the Hon. the Judges of the Circuit Court of the United States in and for the District of : The H. Company, a corporation constituted and created by an Act of the General Assembly of the state of , a citizen of said state, and of the United States, complainant, brings this, its bill of complaint, against the Specialty Company, a corporation organized and established under the laws of the state of , doing business and having its principal place of business in , in said state, W. D. and C. L., respective- ly president and secretary of said Specialty Company, and both residing in said and all citizens of said state of , de- fendants. And thereupon your orator complains and says : First. On and prior to the ninth day of November, A. D. 1883, H. E., of , in the state of — ■ — , was a citizen of the United States, and was the original and first inventor of certain new and useful improvements in button-setting instru- ments which had not been known and used" by others in this country, nor patented or described in any printed publication ' 1 this or any foreign country before his invention thereof, and which had not been in public use or on sale for more than two years prior to his application for a patent next herein- after mentioned ; and being such original and first inventor the said E., on the day of November, A. D. 1883, made ap- plication in due form of law to the commissioner of patents of the United States for letters patent, and duly swore to the specification thereof. By virtue of a proper instrument in writing, bearing date the day of , duly executed and delivered, and duly recorded in Liber O., 30, page 201, of Transfers of Patents, in the patent office of the United States, the said H. E. sold and assigned unto one O. E., his executors, administrators and 964 PATENTS FOR INVENTION. assigns, an undivided one-half of the full and entire right, title and interest in and to the said improvements, and in and to any patent which might be obtained therefor. Subsequently, after due proceedings in all respects accord- ing to the requisitions of the statutes in such case made and provided, letters patent of the United States, numbered 293,- 234, dated the day of , in the year , signed by the secretary of the interior, and countersigned by the com- missioner of patents, were issued under the seal of the patent office and delivered unto the said H. E. and O. E., whereby was granted to them and to their heirs and assigns, for the term of seventeen years from the said date of the same, the exclusive right to make, use and vend the said invention throughout the United States and the territories thereof, as will more fully appear by said patent, or a copy of the same • duly certified from the records of the United States Patent Office, and in this court to be produced. Second. Afterwards, on or about the day of , in the year , the said H. E., by an instrument in writ?iig, bearing that date, and since duly recorded in the United States Patent Office, assigned all his right, title and interest in the said invention as secured by the said patent, unto E. P., of , Massachusetts, and B. P., of , Michigan. Further, on or about the same day and date, namely, the day of , in the year , the said O. E., by an instrument in writing, bearing that date, and since duly record- ed in the United States Patent Office, sold and assigned cer- tain rights in and to the said invention, as secured by said patent, unto the said E. P. and B. P. Subsequently, on or about the day of , in the year , the said O. E., B. P. and E. P., by an instrument in writing, bearing that date, and since duly recorded in the United States Patent Office, sold and assigned a certain un- divided right, title and interest in and to the said invention, as secured by said patent unto G. B., of the city of , in the county of , and state of . piLLS IN EQUITY. 965 Afterwards, on or about the — :— day of , in the year -, the said G. B., O. E., B. P. and E. P., by an instrument in writing bearing that date, and since duly recorded in the United States Patent Office, sold, assigned and transferred all their right, title and interest in and to the said invention, as secured by the said patent, to the Novelty Company, a corporation duly established under the laws of the state of , whereby it became invested with the sole and exclusive right, title and interest in, to and under said patent, as in and by said instrument in writing, or by duly certified copies there- of from the records of the patent office and in this court to be produced will more fully appear. Third. On and prior to the day of , A. D. , O. E., of , was a citizen of the United States, and was the original and first inventor of certain new and useful im- provements in button-setting machines which had not been known or used by others in this county, nor patented or de- scribed in any printed publication in this or any foreign country before his invention thereof, and not in public use or on sale for more than two years prior to his application for a patent, next hereinafter mentioned; and being such original and first in- ventor, the said E., on the said day of , A. D. , made application in due form of law to the commissioner of patents of the United States for letters patent for his said in- vention, and duly swore to the specification thereof. Afterwards, by virtue of a proper instrument in writing, duly executed and delivered, and duly recorded in the Trans- fers of Patents in the United States Patent Office, the said O. E., sold, assigned and transferred unto the said Novelty Company and to its successors and assigns, the sole and ex- clusive right, title and interest in and to the said invention, the said application, and to any letters patent which might be granted thereon, as in and by said instrument in writing, or by a duly certified copy thereof from the records of the pat- ent office, and in this court to be produced will more fully appear. 966 PATENTS FOR INVENTION. Fourth. Subsequently, after proceedings in all respects ac- cording to the requisitions of the statutes in such case made and provided, letters patent of the United States No. 312,987, dated the day of , signed by the secretary of interior and countersigned by the commissioner of patents, were issued under the seal of the patent office and delivered unto the said Novelty Company, whereby was granted to it, and to its successors and assigns, for the term of seventeen years from the said date of the same, the exclusive right to make, use and vend the same invention throughout the United States and the territories thereof, as will more fully appear by said patent, or by a copy of the same duly certified from the records of the patent office and in this court to be pro- duced. Fifth. On and prior to the day of , A. D. , H. v., of , in the state of , was the original and first inventor of certain new and useful improvements in button- setting machines, which had not been known or used by others in this country, nor patented or described in any printed pub- lication in this or any foreign country before his invention thereof, and not in public use or on sale for more than two years prior to his application for a patent next hereinafter mentioned ; and being such original and first inventor, the said v., on the said day of , made application in due form of law to the commissioner of patents«of the United States for letters patent for his said invention, and duly swore to the specification thereof. By virtue of a proper instrument in writing, duly executed and delivered, and duly recorded in the Transfers of Patents in the patent office of the United States, the said H. V. sold, assigned and transferred unto the said Novelty Company, its successors and assigns, all his right, title and interest in and to the said invention, the said application, and in and to any patent of the United States which might be granted therefor ; as in and by said instrument in writing, or by a duly certified BJLLS IN EQUITY. 967 copy thereof from the records of the patent office, and in this •court to be produced, will more fully appear. Subsequently, after due proceedings in all respects accord- ing to the requisitions of the statutes in such case made and provided, letters patent of the United States, No. 328,265, ■dated the day of , A. D. , signed by the secre- tary of the interior and countersigned by the commissioner •of patents, were issued under the seal of the patent office and delivered unto the said Novelty Company, whereby was grant- ed to it, and to its successors and assigns, for the term of seventeen years from the said date of the same, the exclusive Tight to make, use and vend the said invention throughout the United States and the territories thereof, as will more fully appear by said patent or by a copy of the same duly certified from the records of the patent office and in this court to be produced. Sixth. Afterwards, on or about the day of , in the year , the said Novelty Company, by an instrument in writing bearing that date, and since duly recorded in the patent office of the United States, sold, assigned, transferred and set over all its right, title and interest in and to the several inventions as secured by the said several patents numbered re- spectively 293,234, 312,987 and 328,365, as hereinbefore specified, unto your orator, whereby your orator became in- vested with the sole and exclusive right, title and interest in, to and under the said patents; and likewise on the said fulfill the terms of the contract under which such conditional sale was made ; and every vendee of the said button-fastening- machines and each of them who has purchased the same from any agent or intermediate vendee of the Novelty Com- pany or of your orator, has at the time of purchase had like notice that the said machine or machines so sold to him and so purchased by him has or have been sold and purchased to use fasteners made by the Novelty Company only down to the date of its assignment aforesaid to your orator and since then by your orator only; and every such vendee had, at the time of purchasing any of the said button-fastening machines ac- cepted the same under the conditions of sale aforesaid, and has always been bound to fulfill the terms of the contract under which such conditional sale was made. BILLS IN EQUITY. 975 There are now throughout the United States in the pos- session of vendees who have purchased under such conditions of use as aforesaid over forty-five thousand button- fastening machines manufactured by your orator and its predecessor, the Novelty Company, all embodying said patented improvements ; and your orator has been at all times, and is now prepared to supply such vendees of your orator's patented button-setting machines with button-fasteners for use in said machines, at prices reasonable and consistent with proper compensation to your orator for the patented inventions embodied in such ma- chines, and with fair profit in view of the outlay and risk in- curred in the establishment and maintenance of your orator's business as set forth. Fourteenth. By virtue of the contracts of conditional sale, as set forth, your orator became and still is entitled to full and true performance of the contracts and their conditions by the parties of the second part thereto, the customers of your orator and the purchasers of your orator's patented button-setting machines. And your orator is by those contracts vested with the right as against all men to immunity from malicious inter- ference with respect to the said contracts, and to the quiet fulfillment of all performances pursuant to them and their terms as hereinabove expressed. Nevertheless the defendants, the Specialty Company, W. D. and C. L., well knowing the premises, and designing and contriving to benefit themselves at the expense and to the in- jury of your orator, have by persuasions and inducements and by false and malicious representations procured great numbers of persons bound in law to your orator by the said contracts to break them by failure to perform duly the conditions of sale in said contracts, under which your orator's patented button-set- ting machines are supplied to shoe dealers. And by the malicious interference and procurement, as aforesaid, of and by the defendants, your orator has been and is irreparably injured in its lawful trade and business, and hitherto has been without sufficient and adeauate redress for 976 PATENTS FOR INVENTION. the wrongs and injuries which your orator has suffered and is suffering at the hands of the defendants. Furthermore, the defendants persist and threaten to con- tinue in these unlawful practices, rendering your orator sub- ject to the danger of irreparable damage to come, which, if suffered to continue, will surely result in the subversion and utter destruction of your orator's trade and business as a manu- facturer of button-fasteners and button-fastening machines. The acts of these defendants which have caused the damage herein complained of, and the threatened persistence of the defendants in their injurious and malicious interference with and violation of your orator's vested rights in and concern- ing the contracts of sale set forth, are hereinbelow specifically recited and charged. Fifteenth. The defendants by reason of their occupation are acquainted with the names and places of business of shoe dealers in and about the city of , and elsewhere, many of whom are vendees of your orator's patented button-setting machines, sold by your orator or your orator's predecessor in business, the Novelty Company, and who, as such vendees, are bound to your orator to the full performance of their contracts entered into as aforesaid. And the defendants are well acquainted with dealers in leath- er and shoe findings and distributors of shoe dealers' supplies in and about the city of and elsewhere. Sixteenth. These defendants, well knowing the rights and privileges so as aforesaid secured by the said several patents to'your orator, but contriving to injure your orator and deprive it of the profits, benefits and advantages which might and oth- erwise would have accrued to your orator from the said several letters patent, have been since the of , and still are, maliciously interfering with your orator's contracts and busi- ness, to the great and irreparable damage of your orator, as will hereinafter more fully appear. The defendants, knowing the names and location of vendees of your orator's patented button-setting machines who have BILLS IN EQUITY. 977 purchased such machines from your orator, or your orator's predecessor in business, the Novelty Company, have by them- selves or their agents approached such vendees of your orator's patented button-setting machines, and, though well knowing that said, vendees were bound in law to the performance of their contracts with your orator, yet contriving and design- ing to injure your orator and thereby to benefit themselves, have persuaded and induced many of said vendees to break and violate their contracts as set forth, and to purchase from the defendants button-fasteners not made by your orator, and to use such fasteners in the patented button-setting machines made by your orator and by the Novelty Company to whose rights your orator has succeeded, and purchased under the conditions aforesaid from your orator or said predecessor. How many vendees of your orator's button-setting machines the defendants have persuaded and induced to break and vio.- late their said contracts, your orator is ignorant and cannot set forth, but prays that the defendants be -be required to discover full particulars with reference to these matters. Seventeenth. The defendants, with intent to injure your or- ator and to benefit themselves by injuring your orator, have personally approached divers vendees of your orator's patented button-setting machines, who had purchased such machines under the conditions annexed to each contract of sale of such machines herein recited, and who, until the acts of defendants herein complained of, were using in said machines no button- fasteners save those manufactured and sold by your orator, and represented to said vendees of button-setting machines that the contracts existing between them and your orator were of no effect and void, and that the said defendants would fur- nish to the said vendees of your orator's button-setting ma- chines button-fasteners for use therein at much lower prices than those called for by your orator for button-fasteners made by it for use m its patented button-setting machines as afore- said, and which your orator necessarily had charged, in order to receive sufficient recompense for the patented inventions em- 97^ PATENTS FOE INVENTION. bodied in said button-setting machines and adequate income to reward your orator for the outlay and expense incurred in its business; and by these and other persuasions and induce- ments procured the said vendees of your orator's button-setting machines to break and violate their contracts with your ora- tor, and to purchase and continue to purchase for use in pat- ented button-setting machines of your orator's manufacture, button-fasteners made and sold by the defendants, thereby ■causing great and irreparable loss and deprivation of profits to your orator. But to what and how many vendees of your orator's button- setting machines the defendants have made representations and offered inducements as aforesaid, your orator is ignorant and cannot set forth ; and your orator prays that the defendants be required to discover full particulars of such matters as alleged. Eighteenth. The defendants with intent to injure your ora- tor and to benefit themselves by so doing, have by themselves or their agents approached divers dealers in leather and shoe findings in the city of and elsewhere, and have solicited the co-operation of said dealers in the distribution among vendees of your orator's button-setting machines of button- fasteners, not made by your orator, intended and adapted for use in said button-setting machines, and in the persuasion, procurement and instigation of breaches and violations of the several contracts which subsist between said vendees of your orator's patented button-setting machines and your orator as hereinabove set forth, and have in some instances secured the co-operation of said shoe-finding dealers, whereby the more extended business operations of the dealer in shoe find- ings has enabled the defendants, through said shoe-findings dealers and their agents, to distribute among vendees of your orator's patented button-setting machines large quantities of button- fasteners not manufactured by your orator; so that the defendants have indirectly extended their malicious and injurious procurements and persuasions to vendees of your BILLS, ANSWER, ETC. 979 orator's patented button-setting machines over a large terri- tory. And by the acts of the defendants and their agents, as set forth above, large numbers of vendees of your orator's pat- ented button-setting machines have been induced and encour- aged to break and violate their contracts with your orator and to purchase and to continue to purchase for use ; use and con- tinue to use in patented button-setting machines manufactured by your orator or your orator's predecessor in business, the Novelty Company, large quantities of button-fasteners made and sold by the defendants, thereby causing great and irrepara- ble loss and deprivation of profits and business to your orator. Nineteenth. And the defendants, with intent to corrupt and disaffect the vendees of your orator's patented button-setting machines, and to procure the vendees of said machines to break their contracts with your orator, have made divers libelous and injurious statements concerning your orator, designed to injure your ortator's business and to divert the profits thereof to the defendants, namely : That your orator was attempting to extort exorbitant and unreasonable prices for its button- fasteners ; that the patents owned and controlled by your ora- tor were void or lapsed; that the contracts entered into by purchasers of your orator's patented button-setting machines were void and of no weight; that such purchasers need pay ■no heed to the contracts into which they had entered and by which they were bound, nor to any one, who might, on your orator's behalf, remonstrate with said vendees for violating said contracts, but that the said purchasers were at liberty to use the patented machines purchased of your orator or of. the Novelty Company in connection with any button-fasteners they might choose to buy. Twentieth. By means of these persuasions and inducements and false and malicious statements concerning your orator's business and contracts with vendees of its button-setting ma- chines the defendants have succeeded in corrupting and dis- affecting large numbers of vendees and users of your orator's 980 PATENTS FOR INVENTION. patented button-setting machines, and in consequence thereof, such vendees of machines as aforesaid, who were and are bound to the performance of their contracts with your ora- tor, have broken and violated their contracts, and have pur- chased and continue now to purchase, from the defendants or their agents, button-fasteners not manufactured by your orator, but manufactured and sold by the defendants or their agents, and have used button-fasteners so purchased in the button-set- ting machines purchased from your orator in direct violation of the conditions of contract under which said machines were in every instance purchased, to the great and irreparable dam- age of your orator in its business. But what and how many vendees and users of your orator's button-setting machines have under the persuasions and inducements of the defendants violated the conditions of their contract with your orator as aforesaid, your orator is ignorant and cannot set forth; but prays that the defendants be required to discover all partic- ulars with reference to such matters. Twenty-Hrst. The button-setting machines manufactured and sold by your orator are the only machines now on the mar- ket or in use which will set or clinch the fasteners made by your orator, and known as the " Peninsular " fastener or the fasteners made by the defendants, and by them called the " Eureka Staple," which is similar to the " Peninsular " fast- ener ; and the only use for which the defendants have intended their said " Eureka Staple " is and has been in the patented button-setting machines made by your orator and sold under conditions as aforesaid. . Accordingly the defendants have shaped their representa- tions so as to make it known to users of button-setting ma- chines made by your orator under its patents aforesaid, that said " Eureka Staple " was and is adapted and intended for use in such machines. The defendants have depended and still depend solely and entirely for their market for their said " Eureka Staple " upon the use of the same in your orator's machines ; and being fully BILLS IN EQUITY. 98 1 aware that there are no button-setting machines adapted to the use of such fasteners as their said " Eureka Staples " other than the button-setting machines manufactured by your orator under its patents aforesaid ; the defendants have confederated together wilfully and maliciously to induce and persuade the purchasers of your orator's said patented button-setting ma- chines to use therein the said " Eureka Staple " contrary to and in •violation of the contract which such purchasers have made with your orator. TwdHty-second. Prior to and at the time when the defend- ants confederated together as aforesaid for the purposes and with the results herein set forth, your orator enjoyed a profit- able business, and realized from the sale of button-fasteners to the users of the button-setting machines purchased from your orator and held under the conditions aforesaid, an income suffi- cient to pay your orator fairly for the value of the patented inventions embodied in the said machines, and for the outlay and risk involved in the business carried on by your orator in connection with themanufacture of such machines. But from and after the time when these defendants confed- erated together as aforesaid, and until the present, your ora- tor has suffered continued and increasing loss from the falling off in its trade in button-fasteners so that the profits result- ing to your orator from the sale of its button-fasteners have diminished. The defendants are enabled, by the peculiarities of your orator's situation, to make and sell button-fasteners adapted and intended for use in the patented button-setting machines manufactured as aforesaid by your orator, at a price which, if charged and received by your orator for button-fasteners of its own manufacture, would not suffice to remunerate your or- ator for the value of the patented inventions involved and for connection with the manufacture of such machines, the outlay and expense of establishing and maintaining its manufacture of patented button-setting machines, yet at the same time the defendants are enabled to secure a profit amply 982 PATENTS FOR INVENTION. sufficient to repay them for the ir significant expenses incident to the manufacture of staples alone. Twenty-third, By manufacturing and distributing as afore- said about forty-five thousand patented button-setting ma- chines, your orator has created a valuable and extensive market for its button-fasteners, and by virtue of the several patented inventions embodied in the said machines and the contracts aforesaid, by which each and every user of the said machines is bound to your orator, your orator is entitled to the fruits and profits arising from the extended market of its own crea- tion. And if these defendants are suffered to continue their wrongful disturbance and violation of your orator's rights herein complained of, they and others who may and will be encouraged by the impunity of these defendants, will in dis- regard and defiance of your orator's rights in the premises, supply and continue to supply to users of your orator's patent- ed button-setting machines button-fasteners not manufactured by your orator, and will encourage and procure and continue to encourage and procure greater and greater numbers of users of your orator's button-setting machines to violate their con- tracts by virtue of which they are bound to your orator and to use and to continue to use in the said patented button-setting machines button-fasteners not manufactured by your orator, to the total subversion and ruin of your orator's business and to the destruction of your orator's valuable franchises, great and irreparable damage to your orator in the past, but also threaten to continue the acts complained of, and to do Twenty-fourth. The defendants have not only wrought still further irreparable michief to your orator which will inevitably result, as your orator truly believes, if continued un- checked, in the destruction of your orator's business. The unlawful acts of the defendants herein complained of have become a continuing and systematic business, a deliber- ate violation of your orator's rights in and to the performance of the contracts under which your orator's button-setting ma- BILLS IN EQUITY. 983 'chines, manufactured under and by virtue of its patents, afore- said, are placed in the hands of users. Thus the continuance of the defendant's present business is of itself a constant men- ace and injury to your orator, and a threatened irreparable and destructive damage to your orator in its business. But further, the defendants expressly threaten to continue their malicious injury to your orator's business by extending to users of your orator's patented button-setting machines continued offers for sale, at low prices, of fasteners which are held forth by the defendants as substitutes for " Peninsular " fasteners, meaning fasteners made by your orator for its ma- chines manufactured under its patents aforesaid, thereby in- viting all holders of such machines to break their contracts with your orator. And in their representations to users of said machines the defendants assure the retail shoe dealers of the worthlessness of the contracts under which each of your orator's patented' button-setting machines is sold ; and assert that the users of such machines are under no restrictions as to this use. Twenty-fifth. The number of button-setting machines in use, which have been sold by your orator on the terms and under the conditions hereinbefore recited, amounts to many thousands ; and even if it were well known to your orator, as it is not, what and how many vendees of such machines have violated the conditions of purchase and use, to obtain redress from each delinquent user of such button-setting machines your orator believes would involve a great number of suits in many jurisdictions; and so great as to be practically prohib- itive of any adequate redress. But your orator has found that to discover specific cases of breach of such contracts is extremely difficult, owing to the peculiarity of the subject matter, the small bulk of packages of button-fasteners, the great number of machines in use, and the suspicious vigilance of users of the machines in all cases where such users are conscious of having broken their contracts. 984 PATENTS FOR INVENTION. For this reason, as well as for other reasons hereinbefore recited, unless the defendants are restrained from continuing^ their destructive interruption of your orator's business, that business will inevitably be wholly ruined, as it has already been seriously and irreparably injured by the malicious and unlawful practices of the defendants. Twenty-sixth. The number of button-setting machines man- ufactured by your orator, or its predecessor in business, the Novelty Company, under and by virtue of the patents afore- said, and sold to users thereof under the conditions of sale herein set forth, has amounted to over forty-five thousand. These machines and their users are scattered in various busi- ness centers throughout the United States. From the sale of button-fasteners to users of the said button- setting machines, your orator is in receipt of an income which amounts on an average to about six dollars a years for each machine. But although the sum paid by each user of your orator's said machines is inconsiderable relatively to the value of the enjoyment and use of the patented inventions embodied in such machines, yet the aggregate of the many thousand small sums which accrued to your orator in the past from the sale of button fasteners to the users of your orator's said machines resulted in a net income to your orator of about six thousand dollars per month. Twenty-seventh. Your orator in order to maintain its rights under the contracts of sale by virtue of which the button-setting machines manufactured by your orator under the patents afore- said have been transferred to their users, has brought suits founded on the said contracts against the users of said ma- chines, who, by using in such machines button fasteners made and sold or caused to be made and sold by the defendants, have violated the terms and conditions to which they were obliged in said contracts. But in each such suit the defendant therein has refused even to make answer to your orator's com- BILLS IN EQUltY. 985 plaint in said suit, and has suffered judgment to be entered against him. But the injury wrought to your orator by each individual violator of the said contracts is relatively inconsiderable, and actually so small that in no case can the damage suffered, even if fully capable of proof and recovery, be equal to the ex- pense of litigation over and above taxable costs of suit which would be incurred by your orator in bringing suit against each such violator of your orator's contracts of sale. Therefore, for your orator to recover the damage suffered by reason of the many violations of your orator's contracts of sale would involve the institution by your orator of great numbers of suits, in no one of which could your orator hope to recover more than a small fraction of the amount over and above taxable costs necessarily expended in prosecuting such suit. Against the immediate violators of your orator's contract rights your orator is practically remediless; and unless these] defendants, who are the common source of the corrupting in- fluences which have been brought to bear upon the users of your orator's said patented button-setting machines, and by which such users have been induced to violate the conditions of the contract wherein they were, and each are bound to your orator, are restrained from continuing their corrupting prac- tices herein charged and complained of, your orator's business will ultimately be destroyed thereby and your orator irre- trievably ruined. Twenty-eighth. To the end, therefore, that your orator may have such relief as it can obtain only in a court of equity, your orator prays your honors: That the defendants may be required according to the best and utmost of their knowledge, remembrance, information and belief, to make to the matters hereinbefore stated and charged, full true and direct answer, but not under oath, which is hereby expressly waived. That the defendants may be decreed to make full discovery 986 PATENTS FOR INVENTION. of and to account to your orator for all the button fasteners not made by your orator, which they, directly or indirectly, have sold or furnished, or caused to be sold or furnished, to any person or persons, firm or firms, corporation or corpora- tions having possession of any button-setting machine or but- ton-setting machines purchased from your orator or from your orator's immediate predecessor in business, the Novelty Com- pany, under the conditions of sale aforesaid, and for all but- ton fasteners, not made by your orator, which the defendants directly or indirectly have procured, induced or caused any person or persons, firm or firms, corporation or corporations, to use in any such button-setting machine or button-setting ma- chines so purchased from your orator, or its said predecessor in business, and held under the conditions of sale aforesaid. That the defendants may be decreed to pay to your orator all the damages which your orator has and will have sustain- ed by reason of any and all unlawful disturbance and subver- sion of your orator's rights in the premises, and especially by reason of the violations and breaches of contract which the defendants have procured, induced and caused the vendees of button-setting machines purchased from your orator or your orator's predecessor in business, the Novelty Company, and held under the conditions aforesaid, to commit and perpetrate by using the said machine button-fasteners not made by your orator, which the defendants have sold and furnished, or caused to be sold and furnished, for that purpose, and have procured, induced and caused such purchasers to buy and use in the button-setting machines aforesaid, contrary to the terms of their contracts with your orator. That the defendants and each of them, their attorneys, agents, workmen and servants, may by decree of this honorable court, be perpetually enjoined and restrained from, directly or indirectly procuring or attempting to procure, inducing or attempting to induce, or causing any breach or violation of the contracts or of either or any of the contracts now or here- after existing or subsisting between your orator and the ven- BILLS IN EQUITY. 987 dee, or either or any o£ the vendees of button-setting machines sold by your orator or by your orator's predecessor in business, the Novelty Company, or to be sold by your orator, under conditions that such vendees shall use in the button-setting ma- chines so sold no other button-fasteners than those made and furnished by your orator: That the defendants, and each of them, their attorneys, agents, workmen and servants, may by decree of this honorable court be perpetually enjoined and restrain- ed especially from directly or indirectly making or causing to be made for sale, selling or causing to be sold, or ofifering or causing to be offered for sale, to any person or per- sons, firm or firms, corporation or corporations whatsoever, any button-fasteners intended or adapted for use or capable of being used in button-setting machines manufactured by your orator, or by your orator's predecessor in business, the Novelty Company, and sold by your orator or by your orator's said predecessor under the conditions aforesaid ; from directly or indirectly persuading or inducing the vendees, or either or any of the vendees of button-setting machines sold by your ora- tor or by your orator's said predecessor in business, the Novel- ty Company, and held by such vendee or vendees under the conditions aforesaid, to purchase any button- fasteners designed or adapted for use in such machines, other than the button- fasteners made and sold by your orator for use in such ma- chines by the possessors thereof in conformity to the condi- tions aforesaid under which said machines are held ; and from advertising or causing to be advertised for sale any button- fasteners intended or adapted for use in button-setting ma- chines manufactured and sold by your orator or by your ora- tor's predecessor in business, the Novelty Company, and held by purchasers under the conditions aforesaid, other than the button-fasteners made and sold by your orator to be used in such machines by the possessors thereof in conformity to the conditions aforesaid, under which such machines are held ; and from publishing or causing to be published any offer, prom- 988 PATENTS FOR INVENTION. ise or inducement, designed or intended to procure the vendees or either or any of them, of button-setting machines manu- factured and sold by your orator, or by your orator's pre- decessor in business, Novelty Company, and held and used subject to the conditions of sale aforesaid, to use or to pur- chase for use in such button-setting machines, in violation of the contracts or of either or any of them, wherein such ven- dees have been and are bound to your orator as aforesaid, any button- fasteners other than those made and furnished by your orator for use in the said button-setting machines ; and from publishing or causing to be published any matters derogatory or libelous to your orator, or designed or intended to bring your orator into disrepute and ridicule or to injure your orator in and in respect to your orator's reputation and business as a manufacturer of button-setting machines and button-fasten- ers, and thereby to cause disaffection among the vendees of the button-setting machines aforesaid, held subject to the con- ditions of sale aforesaid, and to encourage such vendee to vio- late the terms and conditions of the contracts wherein they are bound to your orator as aforesaid, by using or purchas- ing for use in the button-setting machines aforesaid, button- fasteners other than those made and furnished by your orator ; and making or causing to be made, selling or causing to be sold, or advertising, or causing to be advertised for sale, any part or parts, or portions of machines, designed and contrived to become and to be used as parts or portions of the button- setting machines, or either or any of them, manufactured by your orator or by your orator's predecessor in business, the Novelty Company, and held by the vendees, thereof un- der and subject to the conditions of sale aforesaid, with in- tent by so doing, to induce, procure or persuade the ven- dees, or either or any of them, of the said button-setting ma- chines to violate the conditions of their contracts as aforesaid by using in said button-setting machines button-fasteners other than those made and furnished by your orator. And that the defendants may likewise be enjoined and re- BILLS IN EQUITY. 989 strained to the same effect while this cause is proceeding to iinal order and decree; and that the defendants may be fur- ther required to pay the costs of this suit ; and that your orator may have such other reUef as the equity of this case may re- quire, and as your honors may deem to be just and right. Twenty-nine. May it please your honors to grant unto your orator, not only a writ of injunction conformable to the prayer of this bill, and an injunction pendente lite to the same effect until further order, but also a writ of subpoena directed to the defendants, the Specialty Company, W. D., and C. L., and commanding them to appear and answer this bill of complaint, and to do and receive what to your honors may seem meet in the premises. The Heaton Co., By E. P., Treasurer. [Verification.] X. & X., Solicitors for Complainant. (i) Taken from the record in The Heaton-Peninsular Button Fastener Ca vs. The Eureka Specialty Company, 18 C. C. A. 674 ; 72 Fed. Rep. 520. A bill will lie to enjoin contributory infringement. To constitute such infringement two things must concur. First, there must have been actual infringement committed, Heaton Peninsular Button Fistener Co. vs. Eu- reka Specialty Co., 77 Fed. Rep. 288, 25 C. C. A. 267 ; Robbins vs. Aurora Watch Co., 43 Fed. Rep. 521 ; and second, there must have been some con- cert of action between him who did commit the infringement and him who is charged as a contributory infringer. Snyder vs. Bunnell, 29 Fed. Rep. 47; Edison Elec. Light Co. vs. Peninsular Co., gs Fed. Rep. 669; Thomp- son-Houston Co. vs. Ohio Brass Co., 80 Fed. Rep. 712, 26 C. C. A. 107. A defendant may render himself liable as a contributory infringer by making and selling one element of a combination covered by a patent with the intention and for the purpose of bringing about its use in such a com- bination, Wallace vs. Holmes, No. 17,100, Fed. Cas., 5 Fish. 37, cited with approval in Am. Cotton Tie Co. vs. Simmons, 106 U. S. 89; Thompson- Houston Co. vs. Kelsey Elec. Ry. & Spec. Co., 75 Fed. Rep. iocs, 22 C. C. A. I ; Thompson-Houston Co. vs. Ohio Brass Co., 80 Fed. Rep. 712 ; 26 C. C. A. 107; Red Jacket Mfg. Co. vs. Davis, 82 Fed. Rep. 432, 27 CCA. 204 ; Am. Graphophone Co. vs. Leeds, 87 Fed. Rep. 873 ; Travers vs. Beyer, 26 Fed. Rep. 450; Schneider vs. Pountney, 21 Fed. Rep. 399; or by selling a compound which he knows cannot be practically applied without making the user a trespasser, Alabastine Co. vs. Payne, 27 Fed. Rep. 559; or by manufacturing, advertising and selling an apparatus intended and adapt- ed only to use a patented process or to make a patented article, N. Y. Filter 990 PATENTS FOR INVENTION. Co. VS. Jackson, 91 Fed. Rep. 422; Andrews vs. Cross, 8 Fed. Rep. 269; Am. Graph'ophone Co. vs. Hawthorne, 92 Fed. Rep. 516; or by furnishing drawings and specifications of what he knows to be an infringing device, as architect or contractor, Risdon Iron & Locomotive Works vs. Trent, 92 Fed. Rep. 375 ; Toppan vs. Tiffany Refrig. Car Co., 39 Fed. Rep. 420 ; or by selling a part of a patented article of manufacture to be used in manufacturing that article. Celluloid Mfg. Co. vs. Am. Zylonite Co., 30 Fed. Rep. 437, 35 Fed. Rep. 417; or by selling an article, the use of which in connection with the patented device, is a violation of the conditions of a license and destroys the protection the license would otherwise afford, Heaton Peninsular Button Fastener Co. vs. Eureka Specialty Co., 77 Fed. Rep. 288, 25 C. C. A. 267 ; Waterman vs. Shipman, 55 Fed. Rep. 982, s C. C. A. 371 ; Tubular Rivet & Stud Co. vs. O'Brien, 93 Fed. Rep. 200. Where a licensee, to sell materials to be used in a patented process to licensees, sells materials to be for such purpose to other persons known not to be licensees, he becomes liable as a contributory infringer, Willis vs. McCul- len, 29 Fed. Rep. 641. No. 761. Petition of Manufacturer to Intervene and Defend its Vendee, (i) \_Captton^ Your petitioner, the G. S. Co., respectfully shows unto your honors that it is a corporation organized under the laws of the state of , and that it is engaged in the business of manufacturing, and manufactures, among other things, [har- vesting machines]. And your petitioner further shows unto your honors that on the day of , A. B. filed his bill in equity in this court against C. D., charging him with the infringement of letters patent of the United States, No. , granted A. B. on the day of , for an improvement in [harvesting machines], by selling and oflFering for sale certain [harvesting machines], alleged to contain the invention set forth in said patent, praying process and injunction restraining the further use or sale by the said C. D. of the [harvesting machines] alleged to be an infringement of the patent aforesaid. And your petitioner further shows unto your honors that the said [harvesting machines], alleged to be an infringement BII,LS IN EQUITY. 991 of the patent aforesaid, were manutactured by your peti- tioner at , and were purchased from it by the said C. D., and your petitioner says that it has a large number of vendees throughout this country who are selhng its [harvest- ing machines], similar in construction to those sold by said C. D., the defendant herein, and that A. B. threatens to bring suit against other vendees of your petitioner, thereby greatly injuring its business and unnecessarily harrassing its custom- ers and multiplying suits. And your petitioner further says that C. D. has not sufl&- cient interest in the result of this suit to properly defend the same, and that your petitioner has great interest in the result of this controversy, in that if a decree be entered against the said C. D. herein, and an injunction granted, as prayed in the bill of complaint herein, your petitioner fears that the said A. B. will pursue its vendees and file suits against them, as he has threatened to do, and that preliminary injunctions will be granted in such suits on the ground of prior adjudication of the validity of the patent, all of which will tend to greatly injure the business of your petitioner to his irreparable loss. And your petitioner further shows unto your honors that the said A. B. has never brought suit against your petitioner charging it with infringement of said patent, although your petitioner has been manufacturing, advertising, and selling [harvesting machines] like those alleged to be an infringe- ment in the bill of complaint herein, and the said A. B. knew well that your petitioner was so doing long before he filed his bill herein. Wherefore your petitioner prays that it may be made party defendant herein and be allowed to intervene, and be made defendant herein and to file an answer and to defend the same, and for all other and further relief. The G. S. Co., By G. S., President. R. X., Attorney for Petitioner. \yerification. See No. 279.] 992 PATENTS FOR INVENTION. (i) The practice has grown up in patent cases of permitting a manufac- turer to intervene and defend for his vendee sued for infringing a patent. The real owner of the alleged infringing device may intervene to defend. Standard Oil Co. vs. Southern Pac. Co., 54 Fed. Rep. 521. 4 C. C. A. 491 ; Curran vs. St. Charles Car Co., 32 Fed. Rep. 835. The intervention should be made before the decree against the user is granted. Ring Refrigerator Ice Co. vs. St. Louis Ice Mfg. & Cold Storage Co., 67 Fed. Rep. 535 ; Washburn & Moen Mfg. Co. vs. Colwell Steel Barb Fence Co., i Fed. Rep. 225 ; Cochrane vs. Deener, 95 U. S. 35s, unless collu- sion is shown between the original parties. Barker vs. Todd, 15 Fed. Rep. 265. Dealers or manufacturers of similar articles are not entitled to inter- vene. Thompson-Houston Elec. Co. vs. Sperry Elec. Co., 46 Fed. Rep. 75 ; Page vs. Holmes, 2 Fed. Rep. 334. Interveners cannot maintain a cross bill presenting grounds for equitable relief which the original defendant could not have set up. Curran vs. St. Charles Car Co., 32 Fed. Rep. 835. The petition should be presented to the court after notice to plaintiff or his attorneys and leave obtained to intervene. When leave is granted the I petitioner becomes a defendant and is bound by the result of the suit as though he had been an original party to it. For another form of petition see Standard Oil Co. vs. So. Pac. Co., 54 Fed. Rep. 521, 4 C. C. A. 401. No. 762. Order Granting Permission to Intervene and Defend. This cause being heard this day of , upon peti- tion of The G. S. Co. for leave to intervene and defend the same, said petition showing the said The G. S. Co. to be the manufacturer of the devices charged as infringement of the patent sued on herein, and counsel having been heard for the respective parties, it is ordered that the said petitioner have leave to intervene as defendant, and to defend the same. DEMURRER AND PLEAS. 993 DEMURRERS AND PLEAS. No. 349. Demurrer (i). The Demurrer of C. D., Defendant herein, to the Bill of Complaint of the above-named Plaintiffs. This defendant, by protestation, not confessing or ac- knowledging all or any of the matters or things in the said bill of complaint contained to be true in such manner and form as the same are therein set forth and alleged, demurs to the said bill. And for causes of demurrer shows : First. That it does not appear from said bill of complaint that the plaintiffs herein have such title or interest in or under the letters patent herein sued upon as to enable them to maintain suit against this defendant. Second. That the bill of complaint does not show any inter- est of D. & Co. in the subject-matter of the litigation. Third. That it does not appear, from the bill of complaint, that the said G. W. and D. & Co. have a joint interest in the subject-matter of this litigation. Fourth. It does not appear from the bill that the plain- tiff, D. & Co., is entitled to any relief whatever. Wherefore, and for divers other good causes of demurrer appearing on the said bill, this defendant demurs thereto. And it prays the judgment of this honorable court whether it shall be compelled to make any answer to the said bill ; and it humbly prays to be hence dismissed with its reason- able costs in this behalf sustained(3). R. X., Solicitor for Defendant. (i) Consult No. 122 et seq., and notes. See Robinson on Patents, Sec. mo; Story's Eq. PI., Sees. 436, 646; Beach's Mod. Eq. Prac, Sees. 224, 280, and 31st to 38th Rules in Equity. 994 PATENTS FOR INVENTION. The question of patentability can not be decided on demurrer except in clear cases. Blessing vs. Steam Copper Works, 34 Fed. Rep., 753 ; Dick vs. Oil-Well Supply Co., 25 Fed. Rep., 125. A demurrer does not admit that the invention is patentable ; see Engraving Co. vs. Hoke, 30 Fed. Rep., 444. Delay in applying for a reissue may be raised by de- murrer ; see WoUensak vs. Reiher, 105 U. S., 96. Demurrer to a bill for profits filed one day before the patent expires has been sustained. Davis vs. Smith, 19 Fed. Rep., 823. Question of title raised by de- murrer can not be removed by amendment ; Steam Relief Valve Co. vs. City, 19 Fed. Rep., 253 ; S. C, 28 O. G., 283. A defendant may demur to the whole bill, or demur to a part and answer to the residue, but can not both answer and demur to the whole bill ; see 32d Rule in Equity, and consult Nos. 135, 138, and 139 supra; see also Adams vs. Howard, 9 Fed. Rep., 347, and compare the 37th Rule in Equity, as interpreted in Hayes vs. Dayton, 8 Fed. Rep., 702 ; butif the demurrer and answer are filed simultaneously, the plaintiff waives the right to object if he goes to argument on the demurrer ; see Hayes vs. Dayton, above. This demurrer was sustained in Blair vs. Lippincott Glass Co., 52 Fed. Rep., 226. (2) There must be an affidavit and certificate of counsel; see 31st Rule in Equity. For form of Affidavit and Certificate, see No. 76s. No. 764. Demurrer to Bill Charging Contributory Infringement of a Patent. [Caption.] Now come the said defendants, C. D. Company, W. D. and C. L., and demur to the bill of complaint in this cause, and for cause of demurrer show : First. That the complainant has not, in and by its said bill, made or stated such a case as entitles it, in a court of equity, to any discovery or relief from or against these de- fendants, touching the matters contained in the said bill, or any of said matters. Second. That the said bill does not prevent a controversy arising under the patent laws of the United States, and does not show that more than two thousand (2,000) dollars, ex- clusive of interest and costs, is involved in the controversy. DEMURRERS AND PLEAS. 995 Third. That the said bill does not aver the existence of any contract relations between it and the users of the machines therein referred to whereby such users were under affirmative obligation to use the fasteners made, by the complainant, and therefore does not show the existence of any such contracts as it is alleged the defendants are causing to be broken. Fourth. That the said bill shows that the said complainant is seeking the aid of this court in maintaining a monopoly, not sanctioned by the patent laws or any other laws, but contrary to public policy. Fifth. That the bill shows that the complainant has, for any injuries it has suffered, a perfect, adequate and complete remedy at law, by proper actions against the various users of the machines referred to in said bill. Sixth. That said bill shows that caid complainant has a per- fect, adequate and complete remedy at law against the defend- ants. Seventh. That the respective rights and duties of the said complainant and the various users of its said machines cannot be litigated and determined in a cause wherein they are not parties. Wherefore these defendants demur to the said bill and pray the judgment of this court whether they shall be compelled to make any further or other answer thereto, and pray to be dismissed with their reasonable costs in this behalf sustained. [Affidavit and certificate as in No. 765. J Y. & Y., Solicitors for Defendants. (i) Taken from record in Heaton-Peninsular Button Fastener Co., complainant, vs. Eureka Specialty Co., et al., 19 C. C. A. 674 ; 72 Fed. Rep. 520. No. 765. Demurrer to Bill for Want of Patentable Invention Disclosed. [Caption.] (i) This defendant, by protestation, not confessing or acknowl- edging all or any of the matters and things in said complain- 996 PATENTS FOR INVENTION. ant's bill to be true, in such manner and form as the same are therein set forth and alleged, demurs thereto, and for cause of demurrer shows that said complainant has not, in any by his said bill, made or stated such a cause as does or ought to entitle him to any equitable relief as is thereby sought and prayed for, from or against this defendant, for that the patent averred and set forth in said bill is void for want of patentable invention. Wherefore this defendant prays the judgment of this hon- orable court whether it shall be compelled, to make any fur- ther or other answer to the said bill or any of the matters and things therein contained and prays to be hence dismissed with its reasonable costs in this behalf sustained. R. Y., State of , Solicitor for Defendant. County of , ss. I, W. A., being duly sworn, upon my oath say that I am the secretary of the defendant company in the above entitled cause, duly authorized in the premises, and that the foregoing demur- rer is not interposed for delay. W. A. Signed in my presence, and sworn to before me, this day of . J. A., [^Seal.'] Notary Public in and for Said County. I hereby certify that in my opinion the foregoing demurrer is well taken in point of law. R. Y., Solicitor for Defendant. * ■ (l) It is well settled that a demurrer will lie to a bill or declaration on the ground that the alleged invention, as disclosed by the specifications of the patent sued on, are devoid of patentable novelty or invention. Richards vs. Elevator Co., 158 U. S. 299 ; Risdon Locomotive Works vs. Medart, 158 U. S. 68, 84; Heaton Peninsular Button Fastener Co. vs. Schlochtermeyer, 72 Fed. Rep. 520, 18 C. C. A. 674. Profert of the patent makes it a part of the bill or declaration so that a demurrer will reach it. Dickerson vs. Greene, 53 Fed. Rep. 247; Warner Bros. vs. Warren Featherbone Co., 97 Fed. Rep. 604. The general rule governing cases in disposing of demurrers is fully stated by Judge Taft in American Fibre Chamois Co. os. Buckskin Fibre Co., 72 Fed. Rep. 508, 18 C. C. A. 662 and cases there collated. DEMURRERS AND PLEAS. 997 No. 760. Plea setting up Defense of License frona Patentee, (i) [Caption.] The Plea of C. D., Defendant, to the Bill of Complaint herein. This defendant, by protestation, not confessing or acknow- ledging things by said bill set forth and alleged to be true in such manner and form as the same are thereby and therein set forth and alleged, and for plea to the whole of said bill, says: That prior to the alleged assignment of the said letters pat- ent sued on to A. B., plaintiff herein, the said J-,. M., patentee, on or about the day of 1890, executed a license to said C. D., granting him the right to make plows under the said letters patent, for the full term of the life of the said patent, in one factory, located at Akron, Ohio, and to sell the same throughout the United States, in consideration of one thousand dollars, which was paid said I/. M. by this defend- ant. The license referred to is in words and terms as follows : \Here set forth the license in writing. If not in writing, so state\, and that this defendant has heretofore manufactured plows like those described and claimed in the letters patent sued on under said license, at Akron, Ohio, and at no other place. All of which statements this defendant avers to be true, and he pleads the said license to the said plaintiff's bill, and prays judgment of this honorable court whether he should be compelled to make any further or other answer to the said bill, and prays to be hence dismissed with his costs in this behalf most wrongfully sustained. C. D. [ Verification and Certificate of Counsel. For forms, see Nos. 133 and 134.] (l) As to pleas in Equity generally, see Story Eq. PI., Sees. 647, 837 ; 31st to 38th Rules in Equity; Beach's Modern Equity Prac, Sees. 293, 330, and forms Nos. 154 et seq., supra. As to pleas in Equity in Patent cases, see Robinson on Patents, Sees. II 12 et seq., and cases cited in notes. 998 PATENTS FOR INVENTION. No. 767. A Plea setting up Defense of prior suit. \Caption and introduction^ and first paragraph as in No. 350, and continue as follows {\ That heretofore, to wit, on or about the day of , 1894, the said plaintiff, A. B., filed his bill of complaint in the circuit court of the United States for the district of , against E. F., showing therein that the said A. B. was the patentee, and still holds the title of the said letters patent No. , in which bill the said E. F. was charged with in- fringement of the said letters patent by the sale of [carriage- tops], the same as those charged to be the infringement of the same patent in the bill of complaint herein, and the same re- lief was prayed as is prayed in the bill of complaint herein. That the said E. F. was, at the time the said infringement was complained of, a vendee of this defendant, and was sell- ing [carriage-tops] manufactured by this defendant. That the said E. F. appeared by counsel and made answer to said bill of complaint, and proofs were taken in behalf of plaintiff and defendant, and on or about the day of , the said case came on to be heard, before his honor, Judge W., and was argued by counsel for plaintiff, as well as for defend- ant, and, after due consideration, his honor. Judge W., pro- nounced his opinion, holding that the said [carriage-tops] were not an infringement of the said letters patent, and entered a decree accordingly, dismissing the said bill of com- plaint at plaintiff's cost. That the [carriage-tops] referred to in the bill of complaint herein, and all the [carriage-tops] and devices for the manu- facture, use, and sale of which this defendant is charged with infringement in the bill of complaint herein, are the same in all respects as are those for the sale of which the said E. F. was charged with infringement in the aforesaid bill of com- plaint, dismissed as aforesaid, and which is the object of controversy in said suit. DEMURRERS AND PLEAS. 999 I Wherefore this defendant pleads this prior adjudication upon the matters and things here in controversy, all which statement this defendant avers to be true, etc. [conclude as in No. 766]. No. 768. A Plea Setting up the Defense of a License and Settlement of prior suit (i). [Caption, introduction, and first paragraph as in No. 350, and continue as follows :'\ That heretofore, to wit : on or about the day of , 1888, the said plaintiff, A. B., filed his bill of complaint in this court against C. D., showing therein that the said A. B. had acquired title of the said letters patent No. ,in manner and form set forth in the bill herein, whereby he was vested with the exclusive rights under said letters patent, in which bill the said C. D. was charged with infringing the aforesaid let- ters patent by the manufacture, use, and sale of [pumps], the same as those "charged to be the infringement in the bill of complaint herein, and the same relief prayed as is prayed in the bill of complaint herein. That the said defendant appeared by counsel, and there- upon, while said cause was pending, overtures for settlement were made to the said defendant by the said A. B. That the said defendant thereupon, and while said suit was pending, on or about the day of , 1889, for the pur- pose of protecting his patrons and vendees from the annoy- ance to which they were siibject by reason of the pendency of said suit, and by reason of threats of suits under the same patents being made by said plaintiff against the said patrons and vendees of the defendant, and for the purpose of avoid- ing for himself the expense of further litigation, entered into a contract with the said plaintiff, whereby, in consideration of the agreement on the part of the defendant therein, to dismiss a certain suit for infringement of letters patent for improvements in [pumps], then pending in this court, in lOOO PATENTS FOR INVENTION. which said defendant was party plaintiff, and J. M., dealer in [pumps] manufactured by the said A. B. under the patents herein sued on, was defendant, and the said [pumps] so man- ufactured were complained of as infringements of the patents so sued upon, and the said plaintiff A. B. agreed forthwith to dismiss his aforesaid bill against C. D., and to release and license the said C. D. to manufacture and sell [pumps] under each and all of the patents owned by him throughout the term thereof. That, in pursuance of said contract, at or about the date aforesaid, an agreement in writing was entered into by the said parties, duly signed and executed by the said C. D. and the said A. B., and thereupon a duplicate thereof made in ink by the said A. B., signed and executed as aforesaid, and by him delivered to the said C. D. Which said agreement in writing is in words and terms as follows, to wit : \here set forth the agreementi, the said suit against C. D., and the said suit against J. M., being the only suits pending between the said parties directly or indirectly. That the said licenses referred to therein are licenses to manufacture, use, and sell under all the patents recited in the respective bills of complaint therein, and all other patents relating to pumps owned or controlled by the said parties respectively or either of them. That the said agreement was at the time, to wit: on or about the day of , 1889, fully understood and in- tended by the plaintiff herein, and each and all parties thereto, to be a final agreement, executed, and as such in force and effect from the date thereof. That he having often requested the said A. B. to with- draw his said bill of complaint in accordance with the said contract and agreement, offering simultaneously to dismiss his said bill against the said J. M., and the said A. B. having re- fused so to do, he, the said C. D., moved this honorable court for an order dismissing the said bill of complaint in pursuance of said contract and agreement, and his said mo- DEMURRERS AND PLEAS. lOOI tion having been heard by his honor, Judge W., upon argu- ment as well in behalf of said plaintiff as said defendant, the aforesaid bill was thereupon ordered dismissed, and was dismissed, and the said bill against the said J. M. was there- upon by plaintiff duly dismissed. That the [pumps] referred to in the bill of complaint herein, and all the pumps and devices by the manufacture, use, and sale of which this defendant is charged with in- fringement in the bill of complaint herein, are the same in all respects as those by the manufacture, use, and sale of which the said C. D. was charged with infringement in the aforesaid bill of complaint, dismissed as aforesaid, and which were the object of controversy in said suit, and released and licensed by the aforesaid contract and agreement, and havfe been and are being manufactured and sold by the said C. D. under and in accordance with the terms and provisions of said contract and agreement. Wherefore this defendant avers, by virtue of the premises, the said [pumps] and all [pumps] and devices complained of in said bill of complaint herein, manufactured by the said C. D., are released as well in respect to their manufacture as in respect to their sale and use by the agents and vendees of the said C. D. from all adverse' claim of right under the aforesaid letters herein sued upon, and in all letters patent owned in whole or in part by the said A. B. and the full ex- tent of his interest therein. That all of which this defendant avers to be true, and he pleads the said release, and prays the judgment of this honorable court whether he should be compelled to make any further or other answer to so much of the said bill as is herein pleaded unto, and prays to be hence dismissed with his costs and charges in that behalf most wrongfully sustained. C. D. [VeriHcation and Certificate of Counsel. See No. 765.] (i) See notes to No. 766. No. 769. Plea to Jurisdiction. For form of Plea, see No. 383. 1002 PATENTS FOR INVENTION, ANSWERS. No. 770. General Form (i). [Caption.] The Answer of C. D. to the Bill of Complaint herein. This defendant now, and at all times, saving and reserving unto himself all benefit and advantage of exception which can or may be had or taken to the errors or uncertainties or other imperfections in said bill of complaint contained, for answer thereto or unto so much of such parts thereof as said defendant is advised is or are material for him to answer unto, says as follows : First. He denies, upon information and belief, that the said A. B. was the true, original, or first inventor of any new or useful invention in machines, as alleged in said bill ; says that it is not true that said alleged invention was not known or used in this country, and not patented or described in any printed publication* in this or foreign countries before his alleged invention thereof, or that the same had not, at the time of his application for a patent therefor, been in public use or on sale for more than two years. Second. He is not informed, except by said bill of com- plaint, whether letters patent for said alleged invention in due form of law were issued to said A. B., or whether said alleged letters patent were under the seal of the patent office of the United States, or were signed by secretary of the interior, or countersigned by the commissioner of patents, and leaves the plaintiff" to make such proof thereof as he may ; and denies that the said letters patent granted to the said A. B., his heirs or assigns, for the term of seventeen years, or for any other term, the exclusive, or anyother right. ANSWERS, 1003 to make, use, or vend the said alleged invention throughout the United States and teritories thereof, or any right what- soever. Third. He denies that, at the time alleged in said bill of complaint, or at any time, he did make, use, or vend ma- chines -containing and embodying the invention set forth and covered by said letters patent sued upon, or that he has, in any way, infringed upon the exclusive rights, or any rights, of the complainant, or intended so to do ; denies that he has derived or realized any profits which plaintiff would have derived from his alleged exclusive rights, and denies that plaintiff is deprived of any royalties, or has incurred any damages by any unlawful or wrongful acts of said defendant. Fourth. He says that upon information and belief that the said A. B. was not the original and first inventor or dis- coverer of the invention purporting to be covered by the said letters patent, or of any material or substantial parts thereof, and that the same, or material, or substantial part thereof, had been in public use and on sale in this country prior to said alleged invention, and for more than two years before the application for said letters patent; and further, that the same had been described and illustrated in printed publications and patents prior to the date of the supposed invention of the said A. B. Said defendant specifies instances of such prior use and publication as follows, to wit: Letters patent of the United States as follows: No. , granted S. W. C, June 25, 1878. No. , granted J. N. R., October 29, 1879, etc. Letters patent of the Kingdom of Great Britain as follows : No. , of 1875, granted H. S. W., and dated June 12, 1875, etc. Machines manufactured and sold by the N. G. Company, at Cincinnati, Ohio, known at Cincinnati, Ohio, to W. S., whose residence is Akron, Ohio, and to G. B. M., whose res- idence is Chicago, Illinois, and to others, whose names and I004 PATENTS FOR INVENTION. places of residence the defendant craves leave to furnish hereafter. A printed publication, made up of drawings and figures il- lustrating various machines entitled "Modern Machines," issued and circulated by the College Hill Manufacturing Company, Edinburg, Scotland, which the defendant craves leave to produce and exhibit to the court at any hearing of this case, together with proof that the particular publication produced was printed and circulated at least as long as four years before the alleged invention of A. B. Reference to the illustrations, nine in number entitled \here give titles ofillus- tratiofis], on page lo, also to three illustrations on page 21, also to figures number 9, 11 (etc.), on page 25 of said publi- cation. Fifth. He says, upon information and belief, that the let- ters patent sued upon are invalid for want of patentable in- vention. Sixth. He says, upon information and belief, that the plaintiff has full and adequate relief at law, and that this court, as a court of equity, has no jurisdiction. Wherefore this defendant, having fully answered to the said bill of complaint in so far as he is advised the same is mate- rial and necessary to be answered unto, denies that the said plaintiff is entitled to the relief or any part thereof in the ^aid bill of complaint demanded, or any relief whatsoever ; prays the same advantage of his aforesaid answer as if he had pleaded and demurred to said bill of complaint, and prays to be hence dismissed with his reasonable charges in this behalf most wrongfully sustained. C. D. X. & X., Solicitors for Defendant. R. X., of Counsel. (i) See Robinson on Patents, Sec. 11 14, et seq.\ R. S., Sec. 4920 ; con- sult also Robinson on Patents, Sec. 959 et seq. As to forms for formal parts of an Answer, see No. 396 et seq. SPECIAL ALLEGATIONS IN ANSWERS. IOO5 SPECIAL ALLEGATIONS IN ANSWERS. The following allegations may be inserted in the forego- ing answer when it is desired to set up any of the following defenses. A few apparent changes may be required in No. 770 when these insertions are made. Special defenses, ■yyhich in actions at law must be set forth in a notice, in equity appear only in the answer. See Robinson on Pat- ents, Sec. 1116; also Sees. 959 to 984 ; R. S., Sec. 4930. No. 771. Denying Assignees Right to Sue. [Here the patentee and plaintiff are not the same, and S. T., the actual patentee, should be inserted, and insert the following as third :'\ He is not sufi&ciently informed whether the said S. T., by an instrument in writing, assigned to the plaintiflFall his right, title, and interest in, or any exclusive rights in, said in- vention or said patent ; or whether said written assignment includes the right to sue for and collect damages for the un- authorized use of said alleged invention, or whether said instrument was duly' recorded in the patent office of the United States, and leaves the plaintiff to make such proof thereof as he may. No. 772. Alleging Imperfect Specification (i). He is informed, and believes it to be true, that for the pur- pose of deceiving the public, the description and specification of the said invention and discovery filed by A. B., the pat- I006 PATENTS FOR INVENTION. entee thereof, in the patent office of the United States, was made to contain less than the whole truth relative to his said invention and discovery [or, more than is necessary to pro- duce the desired effect] in this, that [se^ forth the particulars]. (i) R. S., Sec. 4920, first clause. No. 773. Alleging Defective Specification. He is informed, and believes it to be true, that the descrip- tion of the alleged invention, as set forth in the specification annexed to said letters patent sued on, is incomplete and ambiguous, and the said specification does not show the method of making and using the said alleged patented in- vention in such full, clear, and exact terms as to enable any person skilled in the art or science to which it appertains to make and use the same. No. 774. Denying Utility. He denies that the said invention so patented to the said A. B. is of great, or any, utility and value, or that the same has been introduced into public use, or that the public gen- erally, or any portion thereof, have acquiesced in and ac- knowledged the plaintiff's exclusive right to the same, or any portion thereof No. 775. Denying Prior Adjudication. He is not informed, save by said bill of complaint (and affidavits filed in this suit), whether or not the said A. B. in- stituted and prosecuted in the circuit court of the United States for the district of against L*. W., or that judgment of the court was pronounced, or that a decree was SPECIAL ALLEGATIONS IN ANSWERS. IOO7 entered therein affirming the validity of said letters patent sued on, or a perpetual injunction granted and issued against the said L. W., and he therefore denies the] same; but this defendant says that he [is informed and believes that a cer- tain suit was brought by the said A. B. against one L,. W. in the district of , and that an answer was filed in the said suit, and that the said case was determined without a trial on the merits of the said controversy, and denies that the decree in the said case in any way affected or concerned any device or machine similar to devices and machines made, used, or sold by the defendant herein. No. 776. Alleging Limitation of Claims of Patent by Proceedings in the Patent Office. He is informed and believes that, while the application for the said letters patent in said bill mentioned was pending in the patent office of the United States, the applicant for the patent, the said A. B., so limited and confined the claims of the said application under the requirements of the com- missioner of patents that he can not now seek for or obtain a construction for such claims sufficiently broad to cover the construction used by this defendant. No. 777. Denying Grant of Licenses and Public Acquiescence. He denies, upon information and belief, that the alleged rights of plaintiff under said letters patent sued on have been acquiesced in, and denies that the plaintiff has granted licenses under said letters patent or has applied the said alleged in- vention to practical use extensively or otherwise, or has ex- pended large sums of money in and about said invention. I008 PATENTS FOR INVENTION. No. 778. Denying Plaintiff's Title. He denies, upon imformation and belief, that plaintiff has such title in said letters patent as to enable him to maintain this suit. No. 779. Alleging Abandonment. He says, upon information and belief, that the alleged in- vention had been abandoned to the public prior to A. B.'s application for a patent therefor. No. 780. Alleging Invention by Another Person (i). He says, upon information and belief, that prior to the alleged invention of A. B., and prior to his filing an application for a patent in the patent ofl&ce of the United States, that one S. H. exhibited the said invention to A. B., of , and said A. B., seeking surreptitiously to appropriate the aforesaid inven- tion, or so much thereof as is embraced in the claims of the patent sued on, unjustly and unlawfully filed in the patent office of the United States an. application therefor, wherein he falsely alleged himself to be the inventor thereof, and thereafter he surreptitiously and unjustly obtained the patent sued on for that which was in fact invented . by S. H., who was using reasonable diligence in adapting and perfect- ing his said invention. (i) R. S., Sec. 4920, second clause. No. 781. Alleging Limitation of Duration of Patent by a Prior Foreign Patent (i). He says, upon information and belief, that before the date of the patent sued on, viz., the day of , 1889, letters SPECIAL ALLEGATIONS. IN ANSWERS. IOO9 patent of the Kingdom of Italy were granted to the said A. B. for the term of three years from the day of , 1887, for the same alleged invention as that set forth in the patent sued on, which said Italian patent expired on the day of , 1890, and that the life of the said letters patent sued on terminated with the expiration of said Ital- ian patent, (i) R. S. Sec. 4887. lOIO PATENTS FOR INVENTION. EXCEPTIONS, DEPOSITIONS, ETC. No. 782. Exceptions to Answer. Consult forms No. 432 et seq. No. 783. Replication. See form No. 440. No. 784. Appearance. See forms Nos. 70, 71, and 72. No. 785. Amendment. Consult forms No. 462 et seq. No. 786. Order Granting Leave to Amend Answer and Set up Additional Defenses. IC option.] Upon motion of the defendant, it is ordered that he have leave to amend his answer herein and to set up further prior uses therein to have the same force and effect as if they were set up in the original answer heretofore filed. No. 787. Security for Costs. For form of Motion for Additional Security for Costs, see No. 442. EXCEPTIONS, DEPOSITIONS, ETC. Id I No. 788. Limiting Time within which to take Evidence. For forms of Motion to Assign Time and Order on the same, see Nos. 491 and 492. No. 789. Depositions. For forms for Stipulation Appointing Notary Public an Examiner, Notice for Taking Depositions, Commencement for Depositions, Certificate, see No. 181 et seq., and for form for Transmission, see No. 203. No. 790. Depositions De Bene Esse. Consult Nos. 181 to 184. No. 791. Cost Bill. For form, see No. 135. No. 792. Stipulation to Submit Cause on Brief. For form, see No. 501. No. 793. Entry Discontinuing Case. ^Caption.'] To the Clerk of the Court: We hereby discontinue the above-entitled cause, without prejudice, at plaintiff's cost. X. & X., Attorneys for Plaintiff. I0I2 PATENTS FOR INVENTION. No. 794. Notice of Infringement (i). The C. D. Company, . Gentlemen: — Our clients, the A. B. Company, have in- formed us that you have been engaged in the manufacture and sale of trolley harps, wheels and contact springs, in violation of U. S. letters patent to S. R., No. , dated , which patent is their exclusive property, and they have requested us to notify you, in their name, of this infringement, and to re- quest you to promptly desist from further infringement, and to pay over to them all profit?, gains and advantages which you have derived from such manufacture and sale, as well as damages which our clients have suffered by reason thereof, and, in default thereof, they have instructed us to take steps to fully protect their rights in the premises. Believe us, very truly yours, X. & X., Counsel for A. B. Company. Dated . (i) Notice must be given the defendant that he is infringing either by marking the goods patented or by a notice like above before any recov- ery can be had. R. S. sec. 4900; Dunlap vs. Schofield, 152 U. S. 244; Lowell Mfg. Co. vs. Hogg, 70 Fed. Rep. 787. DECREES, ETC. IOI3 DECREES, ETC. No. 795. Order for Decree Pro Confesso (i). [Caption!] The bill of complaint having been filed in the above-enti- tled case, and the subpoena issued herein having been returned on the day of , 1894, and it appearing therefrom that the said subpoena was duly served upon the above-named defendant on the day of , 1894, and it appearing that the said defendant has failed to appear or plead, answer or demur to the bill of complaint herein, and is in default therefor; now comes the plaintiff by his counsel and enters an order that the bill of complaint herein be taken pro con- fesso. R. X., Solicitor and of Counsel for Plaintiff. (i) This order is filed, as a matter of course, with the clerk. i8th Rule in Equity. No. 796. A Decree Pro Confesso. [Caption.] This cause having been brought on for hearing, and it appearing that the defendant was duly served with process on the day of , 1894 ; that the defendant having failed to appear or to plead, answer, or demur, and an order for a decree pro confesso was duly entered on the day of , 1894; that more than thirty. days have passed since the entry of said order; the court thereupon adjudges and decrees that the plaintiff is the sole and exclusive owner of the letters patent, No. , set forth in the bill of complaint, granted to A. B. for improvement in , and dated the day of IOI4 PATENTS FOR INVENTION. , 1888; that the plain tifiF is also the owner of the entire right to recover damages and profits from all infringers of said letters patent ; that said letters patent are good and valid, and have been infringed by the defendant herein, by the manufacture, use, and sale of embodying said inven- tion, and among others known and designated as . It is further ordered, adjudged, and decreed that the de- fendant, the said C. D., his agents, servants, and workmen, be and hereby are enjoined for the remainder of the term of the life of said letters patent from further infringing the same, and from manufacturing, using, or selling the said infringing , or any or containing or embodying the inven- tion or inventions embraced in said letters patent; that the plaintiff recover from said defendant as well the damages sustained in or by reason of said infringement as the profits, gain, and saving made or realized by the defendant ^thereby, together with the costs herein to be taxed, and that this cause be referred to B. R., Esq., as special master, to take, state, and report an account of damages and profits under and in accordance with this decree. No. 797. Motion to Set Aside Decree Pro Confesso. [Caption^ And comes the defendant and moves this court to set aside the decree entered herein on the day of , 1894, and for leave to appear and answer the bill of complaint. C. D., by X. & X., his Attorneys. No. 798. Decree Dismissing Bill. ^Caption."] This cause coming on to be heard this day of DECREES, ETC. IOI5 upon the bill of complaint and the demurrer thereto [or as may be'], and having been argued by counsel, and the court being fully advised in the premises, it is ordered, adjudged and de- creed that said demurrer [or as may be] is well taken, and is hereby sustained, and that the said bill of complaint herein be and the same is hereby dismissed, with costs to the defendant to be taxed. NO. 799. Interlocutory Decree Sustaining Patent. [Caption.] This cause having come on to be heard, upon the pleadings, proceedings and proofs herein, filed on behalf of both parties, and after hearing R. X., Esq., counsel for complainant, and R. Y., Esq., counsel for defendant, and after due proceedings had, it is, upon consideration, ordered, adjudged and decreed as follows: First. That the letters patent of the United States, issued to A. R., assignor to L. E., trustee, on the day of , for improvements in trolleys for electrical railway service, No. , and assigned to the complainant, the A. B. Company, are good and valid in law, particularly as to the eighth claim thereof, which is as follows : [Here set out the claim.] Second. That the said A. R. was the first, true and original inventor of the invention and improvement described and claimed in said letters patent, and particularly recited in the said eighth claim thereof. Third. That the complainant, the A. B. Company, is the lawful owner of said letters patent. . Fourth. That the defendant, the C. D. Works, has in- fringed upon the said letters patent, and particularly the said eighth claim thereof, and upon the exclusive rights of the complainant undet the same. Fifth. That the complainant do recover of the defendant the profits, gains and advantages which the said defendant IOl6 PATENTS FOR INVENTION. has derived, received or made since , by reason of said infringement of said eighth claim of said letters patent, and that the complainant do recover of the said defendant any and all damages which the complainant has sustained since said date, or shall sustain by reason of said infringement by the said defendant ; but not on account of the sale of trolley harps made and completed prior to the said day .of . Sixth. And it is hereby referred tor S. L., as a Master of this court, who is hereby appointed, pro hoc vice, to take and state the account of said gains, profits and advantages, and to assess such damages and to report thereon with all convenient speed; and the defendant, its directors, officers, attorneys, clerks, servants and workmen^ are hereby directed and re- quired to attend before said Master from time to time as re- quired, and to produce before him such books, papers, vouch- ers and documents, and to submit to such oral examination as the Master may require. Seventh. That a perpetual injunction issue out of and under the seal of this court, directed to the said defendant, the C. D. Works, its associates, directors, officers, attorneys, clerks, agents, servants and workmen, enjoining and restraining them, and each of them, from directly or indirectly making or caus- ing to be made, using or causing to be used, or vendii^ to others to be used, in any manner, any articles, devices, ap- paratus or trolleys for electric railway service, containing, em- bodying or empIo)nng the said inventions and improvements granted by the said letters patent, and particularly claimed in the said eighth claim thereof, or any contact spring for trolly harps, capable of being combined or adapted to be used in in- fringement of said claims, or from infringing upon or violat- ing the said letters patent in any way whatsoever. Eighth. That the complainant do recover of the defendant, its costs and disbursements of this suit to be taxed, and that the question of increase of damages and all further questions be reserved until the coming in of the Master's report. DECREES, ETC. IOI7 No. 800. Perpetual Injunction. \_Capiidn^ The President of the United States of America to C. D., his servants, agents, and workmen, Greeting: Whereas it has been represented to us in our circuit court of the United States for the circuit for the district of , that letters patent of the United States were issued to A. B. for improvement in , dated the day of , 1888, No. , of which the plaintiff is the sole and exclusive owner, and that the plaintiff is also the owner of all rights to recover damages and profits from all infringers of said letters patent (as well prior as subsequent, to the assignment of said letters patent to plaintiff) ; that said letters patent are good and valid, and have been infringed by the defendant herein by the manufacture, use, and sale of embodying said invention, and, among others, by known and designated as . Now, therefore, we do strictly command and enjoin, you, the said C. D., your servants, agents, and workmen, for the remainder of the term of the life of said letters patent from further infringing the same, and from manufacturing, using, and selling the said infringing , or any containing or embodying the invention embraced in said letters patent. \_Add teste. See No. 56.] No. 801. Decree Sustaining in Part a Patent and Dismissing Bill as to Certain Claims. [Caption.^ This cause having been brought to a final hearing, upon pleadings and proofs, on the day of , and counsel for the respective parties having been heard, and the cause hav- IOl8 PATENTS FOR INVENTIONi ing been considered by the court and an opinion filed therein on the day of — -^ — , it is hereby ordered, adjudged and decreed as follows: First. That the A. patent, No. , dated , sued on as to the sixth claim, is void, and the bill is dismissed as to this patent. Second. That the P. patent. No. , dated , sued on as to thd eighth claim, if valid at all, is not infringed. Third. That the S. patent, Na , dated , if valid at all, is not infringed, and as to this patent also the bill is dismissed. Fourth. That, following the decision in the case of this com- plainant against the S. R. Manufacturing Company, the P. patent. No. , dated , is valid as to claims i, 2 and 3, and the bill is sustained as to said patent and the case is re- ferred to E. M., as Master, to take, state and report an ac- count as to claims i, 2 and 3 of this patent, and an injunction as to claims i, 2 and 3 of this patent is hereby awarded. Fifth. That the bill as to R. C, individually, and to R. C. and C. C, executors of the estate of the late P. P., is dis- missed. Sixth. That no costs be recovered by either party, both hav- ing partly failed and partly prevailed. Seventh. The defendant, P. P. & Co., having prayed for a supersedeas, it is ordered that this decree be superseded until the judgment of the Circuit Court of Appeals is entered, upon the filing by said defendant of a supersedeas bond in the sum of $ to be approved by' the judge of this court. No. 802. Notice of Petition to Take New Evidence. [^Caption.] Dated . Mr. R. X., Counsel for Complainant. Dear Sir : — Please find herewith a copy of petition of de- DECREES, ETC. IOI9 fendants, in the above entitled cause, asking for leave to in- troduce evidence, as to structures made by them upon which the decision of the court is requested, together with copies of the affidavits of G. S., L. D. and M. P., in support of said petition. Yours very truly, R. Y., Solicitor for Defendants. Service of the papers referred to above acknowledged, this day of , A. D. — -. R. X., Solicitor for Complainant. No. 803. Petition of Defendants to Introduce New Evidence. [Caption.] To the Hon. the Judges of the Circuit Court of the United States in and for the District of , and Division thereof. In Equity : The petition of the C. D. Manufacturing Company, C. V, and T. O., defendants, to the bill of complaint of the A. B. Manufacturing Company, complainant, respectfully represents, to your honors : That the bill of complaint in the above cause was filed on the day of , alleging infringement by the defendants of United States letters patent, No. , issued , to F. H., and owned by the complainant, said patent relating to improvements in grain drills. That answer and replication were duly filed and on the day of , complainant introduced its prima facie proofs, among which were a photograph of the C. D. drill, which was marked " Complainant's exhibit photograph of C. D. drill," also a section of a drill manufactured and sold by the C. D. Manufacturing Company, which was marked " Com- plainant's exhibit section of defendant's drill." That these two exhibits fully exhibited the structure em- I020 PATENTS FOR INVENTION. braced and supposed to be covered by the first, second and third claims of the H. patent sued on, and related solely to the mechanism by which the springs for giving pressure to the shoe runners, were united to the drag bars, which carried said shoe runners, and by means of which the shoe runners were adjusted vertically to lift them out of the ground, or to regu- late their depth of penetration in the ground. That testimony was offered by both parties — that on the part of complainant tending to show that said uniting structure of the springs was an infringement of the patent, and that on the part of defendants tending to show that such structure did not infringe the claims of the patent, and the case was finally closed and came on for final hearing May , before his honor Judge G. S., at , and was fully argued by counsel for both parties, and the case taken under advisement. That on , his honor Judge G. S., filed an opinion in said case, in which he found that the defendants' structure, as illustrated by the exhibits above referred to, infringed the first, second and third claims of the H. patent sued on, and among other things said: " Upon the whole case the best opinion at which I can ar- rive at is that the defendants' machine infringes the first, sec- ond and third claims of the plaintiff's patent. The question is very close, I think. The invention, although it consists of a combination of old elements, is evidently a very useful and meritorious combination, and its validity being conceded, I think tfie defendants insist upon a too limited construction of the combination. The case, very largely, turns on the point whether the wedge-plate in the defendants' machine is equiv- alent of the clamping plates or the swinging head of the com- plainant's patent. My opinion is that it is such equivalent. It seems to me that the effect is just the same, and that it is brought about in substantially the same way. In case of an original or pioneer patent and applying the full range of equivalents, infringement could hardly be denied. Although, in a more limited sense, the cases seem to warrant the view DECREES, ETC. 1 02 1 that plaintiff is entitled to protection upon the doctrine of equivalent in a patent like the one in suit. " So, I hold that infringemenc of claims i, 2 and 3 is made out and the case fails as to claims 4 and 5. " Decree accordingly." That as soon as this opinion was communicated to your petitioners, they discovered for the first time, that the machines that they had been manufacturing and selling, since , were of a totally different construction, so far as the parts relating to the uniting of the springs to the drag bars were concerned, and that they were not aware until that time of the change that had been made in the construction of said parts. That this information was given to them by Mr. G. S., the superintendent of the C. D. Manufacturing Company, who alone had entire charge of the shops of said company, and directed the construction of the machines made by said com- pany. That the officers of said company are Mr. J. S., president, Mr. T. O., secretary and treasurer, and Mr. L. D., vice presi- dent, and that none of these gentlemen give any attention to the details of construction of the machines manufactured, and sold by said company, but leave the same entirely to Mr. G. S., who is the chief mechanic and superintendent of the company. Your petitioners represent that the changed construction above referred to is correctly represented by the Exhibits " A." and " B.," attached to the affidavit of Mr. G. S., and they are informed and believe that the same do not infringe the first, second and third claims of the patent sued on, or either of them, and therefore pray that your honor may per- mit them to offer evidence as to the facts set forth in this petition, and that your honor may consider the structures thus to be offered in evidence and declare that the same are not an infringement of the H. patent sued on. Your petitioners further show unto your honors, that had they been aware of the facts presented by this petition, they would have taken evidence and offered proofs to show con- I022 PATENTS FOR INVENTION. clusively what the structures were that they were engaged in manufacturing, and they therefore humbly pray that your, honor may upon the showing made to grant this petition, and give them leave to offer the evidence aforesaid, so that in event of an appeal, the whole matter may go up for review and not only a part of it. And your petitioners will ever pray, etc. The C. D. Manufacturing Company, C. B. and T. O. By R. Y., Solicitor for . Defendants. No. 804. Master. After an interlocutory decree sustaining a patent, and de- claring the defendant's device an infringement of the patent sued on, the court usually appoints a special master, to whom the case is referred, to ascertain and report damages and profits on account of such infringement. If a clerk of a United States Court is appointed, a special reason for such appointment must be assigned. See Vol. I, Supplement to R. S., Chap. 183, Sec. 2. For forms of Notices, Oaths of Master, etc., see Nos. 540 to 553- No. 805. Master's Report. {CapHon.l To the Honorable Judges of the Circuit Court of the United States for the District of : The undersigned, R. C, appointed special master in the above-entitled cause, under a decree entered therein the day of , 1894, respectfully submits the following report : Said decree directs the master to "ascertain, state, and report an account of the profits, gains, and advantages which have accrued to defendant, and the damages sustained by DEMURRERS, ETC. IO23 plaintiff, by reason of infringement of tlie patent sued on ; also the number of said stop-valves made and also the number sold by said defendant since the day of , 1885." The master finds : First. That the defendant manufactured during the time embraced in this inquiry 2,000 of said valves of different sizes, as follows: \here make an itemized statement of the num- ber of valves made in each style"], of these 1,975 have been sold, and 35 are on hand. Second. That the plaintiff has granted licenses to L. M., dated ; to S. H., dated ; to H. B., dated , for a uniform royalty of 20 cents per valve, and that the plaintiff produced testimony to show settlements with other infringers, namely, \here state the names of such infringers infull\ on a basis of a royalty of 20 cents per valve, and the master finds that the said 20 cents per valve is an established royalty, and, Third. That upon this basis the amount of damages due from the defendant to the plaintiff is found to be 20 cents per valve for 2,000 valves, amounting to four hundred dollars. The testimony taken by the master, and the licenses and other exhibits, are filed herewith. All of which is respectfully submitted. R. C, Special Master. Dated this day of , 1894. No. 806. Master's Report. (Another Form.) \Caption^ \Proceed as in No. 805 to ^'■Second,'''' and continue as follows .■] Second. There is no established royalty or license fee for the manufacture of said valves that appears in the testimony before your honors or in the testimony produced before this master. Third. That of these valves, 500 cost 50 cents each, and I024 PATENTS FOR INVENTION. 500 one dollar each, which is an average cost of 75 cents each. The cost of the remainder of the valves does not appear, and 75 cents is therefore assumed as the cost of all the valves made by the defendant, making the total cost of all the valves sold, $1,481.25. The total amount received for the valves by the defendant, as appears by defendant's books, was $1,962.50; leaving a net profit on valves sold, $481.25. Fourth. That there appears to be no damage sustained by plaintiff other than the loss of profits on the valves sold as before mentioned, and. Fifth. The master finds that there is due from the de- fendant to the plaintiff the sum of $481.25. The testimony taken by the master is filed herewith. All of which is respectfully submitted. R. C, Special Master. Dated this day of ,' 1894. No. 807. Master's Report. (Another Form.) \Caption^ To the Judge of the Circuit Court of the United States for the District of ■': The undersigned, R. C, appointed special master under a decree entered in above case April 9, 1887, a certified copy of which is hereto attachedi'^respectfully submits the following report: By said decree the master is directed. First. To take and report to the court an account of the profits which the defendants have received, or which have arisen or accrued to them from the manufacture, use, or sale of said improvement, or from said infringement, and Second. To ascertain and report the damages which the plaintiff has sustained thereby since August 26, 1879. This is an action for the infringment of a patent band for DEMURRERS, ETC. IO25 wheel hubs, and in the decision handed down on a rehearing of the cause Sept. 30, 1887, the court says: " The hub in evidence manufactured by defendants shows a band having the overhanging hp at its inner side and the internal vertical or substantially vertical shoulder. The decree will stand, but the accounting will be limited in ac- cordance with, and the injunction modified to conform to, this opinion." This decision of the court limits the master in this account- ing to the particular form of band therein described, and the accounting is made accordingly. It is agreed between the parties that 2,198 sets of wheel hubs with bands were made between January, 1879, and February 13, 1885, but only a part of the bands so used were of the device described in the above-quoted decision of the court. There is nothing in the evidence to show how many of the hubs so made contained the infringing device. I Plaintiff endeavors to show an established license fee, set- ting up three licenses for the sale of the patent device, but even if that were a sufficient number to establish a general license fee, an examination of said license shows such condi- tions as remove them from the category of general licenses for the sale of these specific devices in question. For ex- ample : I. A Hcense was granted by plaintiff to P. & D. to use the infringing device, but it was coupled with other privi- leges and advantages, viz.: First. It was conditioned upon plaintiff going into and remaining in the employ of his licensee. Second. It covered all wheel patents owned by plaintiff, but did not mention the device in question. Third. The fee for the use of all plaintiff's patents should be fixed by mutual agreement, but should never exceed fifty cents a set. Fourth. That such license should include the right to use any and all patents for all improvements which plaintiff I026 PATENTS FOR INVENTION. Fifth. That the license should be exclusive so long as the plaintiff remained in his, licensee's, employ. II. A license was granted to P. & B., but it also included First. The right to use three different patents. Second. The right to use any and all improvements which plaintiff might subsequently use and patent. Third. It binds the licensee to make no competing wheels. Fourth. It is measurably exclusive, in that plaintiff agrees to limit his license to a specific number. III. To the W. Wheel Co. which provided, First. That it should cover two patents and any other which plaintiff might subsequently procure. Second. That plaintiff should not license more than six parties in the United States, except on failure of such six par- ties to supply the demands of the trade. Counsel claim that such a license fee is established by them as constitutes a measure of damages to govern the account- ing in this reference, but the only uniformity in these licenses is the fee, which was 50 cents per set of four wheels, and they lack every other element necessary [to establish a general license fee. Counsel for plaintiff also claims that all the wheel hubs made by defendants contain a band similar in principle to the patented devices, and, therefore, that plaintiff is entitled to compensation for all the wheels made by defendants dur- ing said period. That portion of the decision of the court already quoted seems to furnish a sufficient answer to this claim. The master can not consider any other device than that which has "the overhanging lip at its inner side and the internal vertical or substantially vertical shoulder." The evidence shows that some of the hubs made by defend- ants contain a half-oval band, some a square, and some a V shaped band, but how many of each kind were made does not appear. A sample of each style of band so used was exhibited to the master, and all are filed as exhibits in this accounting. DEMURRERS, ETC. 102/ The master finds: First. There is no established license fee for the use of the said patented device which can be assumed as a meas- ure of damages in this accounting. ■ Second. It is not shown how many wheel hubs containing said patent device were made by defendants. Third. In the absence of testimony showing the number of wheel hubs containing said patented device made by de- fendants the master has no recourse but to find nominal damages due from said defendants to plaintiff, and he there- fore so finds. A draft report, similar in all respects to the foregoing, was submitted to counsel for both parties hereto, thus giv- ing them an opportunity to except to the findings before filing. Counsel for plaintiff filed exceptions, which are hereto attached. The master has re-examined the testimony bearing upon the questions involved in his findings, and overrules said exceptions. The testimony taken before the master and the depo- sitions and exhibits offered at the hearings are filed here- with. All of which is respectfully submitted. R. C, Dated this day of , 1894 , Special Master. No. 808. Final Decree. \Caption.\ This cause having come on to be heard upon the report of B. R., Esq., as special master, to whom it was referred to take, state, and report an account of damages and profits in accordance with the interlocutory decree herein, which re- port is dated the day of , 1894, and also upon ex- ceptions taken to the said report on the part of the plaintiff, I028 PATENTS FOR INVENTION. and also on the part of the defendant, and the said cause having been argued by counsel for the respective parties, and due deliberation had thereon, It is ordered, adjudged, and decreed that the said defend- ant pay to the said plaintiff the sum of dollars, which is the amount found by the special master, as stated in his report above referred to, to be due from the defendant to the plaintiff. It is ordered, adjudged, and decreed that the said defend- ant pay to the said plaintiff his costs in said suit to be taxed, and that said plaintiff have execution for such costs, and for the sums above decreed, to be paid to said plaintiff. ACTIONS AT LAW IN PATENT CASES. IO29 ACTIONS AT LAW IN PATENT CASES. No. 809. Declaration for Infringement after Expiration of Patent. Circuit Court of the United States for the District of . A. B., Plaintiff, ^ ^^ ^^^^ C. D., Defendant, j Trespass on the Case (i). A. B., of the city of , state of , who is a citizen of said state of , and of the United States, plaintiff, complains of C. D., of the city of , state of , who is an inhabitant of the district of , defendant, of a plea of trespass on the case, and says : That A. B., of the city of , state of , was a cit- izen of the United States before and at the time of his appli- cation for the letters patent hereinafter mentioned; that he was the true, original, and first inventor of a certain new and useful invention fully described in the specification of the letters patent hereinafter mentioned, for an improvement in sewing-machines, and which was not known or used in this country, and not patented or described in any printed publication in this country, or any foreign country, before his invention thereof, and was not in public use, or on sale, in the United States more than two years prior to his appli- cation for letters patent of the United States therefor (2) and no application for a foreign patent for said invention has been filed more than seven months prior to the filing of the appli- cation in this country (3). And that, on the day of , 1876, letters patent of the United States, No. , were issued upon the applica- 1030 ACTIONS AT LAW IN PATENT CASES. tion of said A. B. for said invention, in due form of law, and delivered to the said A. B., in the name of the United States of America, and under the seal of the patent office of the United States, and was signed by the secretary of the inte- rior of the United States, and countersigned by the commis- sioner of patents (4) ; and that said letters patent did grant to said A. B., his heirs, or assigns, for the term of seventeen years from the day of , 1876, the exclusive right to make, use, and sell the said invention throughout the United States and the territories thereof. And the plaintiff further says, that always hitherto, from the date of said letters patent up to the expiration of the said letters patent. No. , he has vended to others the right to make and use sewing-machines embodying said invention, to his great advantage and profit. Yet the defendant, well knowing the premises, did con- trive to injure the plaintiff heretofore, to wit : on and after the day of , 1885, and up to and on the day of , 1890, and during and within the term of seventeen years mentioned in said letters patent, and after the granting of the same, and before the bringing of this suit within the district of the United States-, and elsewhere in the United States, unlawfully, wrongfully, and injuriously, and with intent to deprive the plaintiflF of the rights which he might, and otherwise would, have derived from the sale of rights to make and use sewing-machines embodying said invention, and without the license of the plaintiflF, and against the will of the said plaintiflF, did make, use, and sell, and caused to be made, used, and sold, sewing-machines which contained and eimployed substantially the invention covered by the said letters patent sued on herein in infidngement of the said exclusive rights secured to A. B. by the letters patent afore- said, contrary to the statute of the United States in such cases made and provided, whereby the plaintiflF has been, and is, greatly injured, and has been deprived of large roy- alties which he might, and otherwise would, have derived ACTIONS AT LAW IN PATENT CASES. IO3I from the sale of rights to make and use such sewing-ma- chines, and has sustained actual damages thereby to the amount of dollars. Wherefore, by force of the statutes of the United States, the right of action has accrued to the said plaintiff to recover the said actual damages, and such additional amount not ex- ceeding in all three times the amount of such actual dam- ages as the court may see fit to adjudge and order, besides the costs. And yet the defendant, though often requested so to do, has never paid same nor any part thereof, but has refused and still refuses so to do. Wherefore plaintiff prays for judgment in the sum of dollars, and for his costs. R. X., Attorney for Plaintiff. (i) R. S., Sees. 4919 and 4920; Walker on Patents, Sec. 418, et seq.; Robinson on Patents, Sec. 949, et seq. See also Nos. . The pleadings in actions at law in patent cases should conform to the practice under the common law and not to state forms. Myers vs. Cunningham, 44 Fed. Rep. 346. But see Celluloid Mfg. Co. vs. American Co., 34 Fed. Rep., 744 ; May vs. Mercer County, 30 Fed. Rep. 246 ; Brickill -vs. Hartford, 57 Fed. Rep. 216; Cottier vs. Stimpson, 18 Fed. Rep. 68g. (2) Gray vs. James, i Peters, Circuit Ct. Rep., 482; Walker on Pat- ients, Sec. 425. (3) See Act of March 3, 1897, 29 Stat, at L., 692, amending R. S. .Sec. 4887. (4) R. S., Sec. 4883; Cutting vs. Meyers, 4 Wish., 222. See also Ho. 7. No. 810. Verification to Declaration or Plea. United States of America, District of , ss. On this day of , personally appeared before me A. B., who makes solemn oath that the facts set forth in the 1032 ACTIONS AT LAW IN PATENT CASES. above declaration [01- plea] are true, to the best of his knowl- edge and belief. R. C, Clerk. No. 811. Plea. General Issue (i). [Caption, as in No. 809.J And the defendant, by his attorney, R. X., comes and de- fends the wrong and injury when, etc., and says that he is not (or, they are not, or any or either of them) guilty of the said supposed grievances above laid to his charge, or any or either of them, or any part thereof, in manner and form as the said plaintiff has above complained against him, and of this the defendant puts himself upon the country. S.Y., Attorney for Defendant. ^Verification, as in No. 810.J (1) All the ordinary defenses in patent suits may be set np and proved under the general issue, except those specially mentioned in Sec. 4920 of the R. S. of the United States. Of these defenses no- tice must be served upon the plaintiif in writing. The pleadings in law and equity diflFer, in that all the defenses relied upon must be stated in the answer in equity, but need not be so stated in a pleading at law, except as specially provided in the statute above referred to. R. S., 4920 ; See Robinson on Patents, Sees. 993 and 999, and notes and references cited ; N. Y. Pharmacal Co. z'.f. Tilden, 21 Blatchf; 191, 14 Fed. Rep., 740 ; Judson vs. Bradford, 16 O. G., 3 B. and A., 539. No. 812. Plea and Notices of Special Matter (i). [Proceed as in No. 811 to the signature, and insert the fol- lowing:'] And the defendant gives the following notices in writing of special matter to the plaintiff thirty days before the trial : The plaintiff will take notice that the above-named de- ACTIONS AT LAW IN PATENT CASES. IO33 fendant will prove, upon the trial of this cause, in bar of the said plaintiffs action, as follows, to wit : First. That for the purpose of deceiving the public, the description and specification filed by A. B., the patentee aforesaid, in the patent office of the United States, whereon the letters patent sued on were granted, was made to con- tain less than the whole truth relative to his invention, or discovery \or^ more than is necessary to produce the desired effect which was intended to be produced by the said inven- tion, or discovery] in the following particulars, viz.: \here state the particular si\ Second. That the said patentee surreptitiously and un- justly obtained the patent sued on for that which was in fact invented by one J. R., in the city of , state of , be- fore the alleged invention of A. B., and that the said J. R. was using reasonable diligence in adapting and perfecting his said invention. Third. That the said invention and device was not new when produced by the said A. B., and that substantially the same invention and device is shown in printed publications and letters patent of the United States granted prior to the application of the said A. B. for a patent, as follows, to wit: In letters patent. No. , granted G. M., May i6, 1870; In letters patent. No. , granted S. S., June 15, 1872. And on page 104 of the " Universal Dictionary of Mechan- ical Arts," published in Paris, France, by Louis Dumas, at No. Rue St. Jacques, in 1864, etc., etc. Fourth. That he was not the original inventor or discov- erer of any material and substantial part of the thing pat- ented in letters patent No. , herein sued on, but that the said invention and every material and substantial part thereof was invented by one S. M. at , in the state of , who now resides at , in the state of , and that the same was known to be invented by the said S. M. as early as the day of , 1870, and prior to the time when it is al- I034 ACTIONS AT LAW IN PATENT CASES. leged in the declaration that the same was invented and dis- covered by A. B., patentee as aforesaid. Fifth. That the alleged invention mentioned in letters patent No. , sued upon herein, was in public use and on sale in this country more than two years before the applica- tion of the said A. B. for a patent therefor, instances of which said use and sale are more particularly specified as follows : Known to and used by J. M., at Cincinnati, Ohio, in May, 1865, which said use is known to J. M. and I/. N., who re- side in Cincinnati, Ohio, and to others. Sixth. That the alleged invention mentioned in letters patent No. , sued upon herein, had been previously in- vented and discovered by one S. L., at , in the state of , and thereafter and before the time when it is alleged in the declaration the same was invented and discovered by A. B., patentee as aforesaid ; and as early as the day of , 1865, the same was by the said S. L. abandoned to the public, and was, with the consent and allowance of the said S. L., in public use, and used [or, publicly offered for sale and sold] at Akron, Ohio, by J. S. & Co., which said use [or, expo- sition for sale and sale] is known to J. S., president of the said company, who now resides at Cincinnati, Ohio, and to R. S., who resides at Chicago, Illinois, and to others. S.Y., Attorney for Defendant. (i) Only notice of such defenses should be pleaded as the defend- ant wishes to make in his case, and the remaining paragraphs should be omitted. See R. S., Sec. 4920. Robinson on Patents, Sec. 959 et seq. No. 813. Replication. ^Caption, as in No. 809.] And the said plaintiff, as to the said pleas of the said de- ACTIONS AT LAW IN PATENT CASES. IO35 I . fendant, by him above pleaded, of which he has put himself' upon the country, doth the like. R. X., Attorney for Plaintifif. COPYRIGHTS AND TRADE-MARKS. No. 814. A Bill in Equity — Infringement of a Copyright (i). [^Caption. See in No. 207.] To the Honorable, the Judges of the Circuit Court of the United States in and for the District of . A. B., of , in the state of , and citizen of said state, brings this his bill against C. D., of , in the state of , and citizen of said state, and inhabitant of the district of , and thereupon your orator complains and says: That heretofore and prior to securing a copyright for the same, as hereinafter recited, he was the proprietor of a book entitled \set forth the title\ of which he is informed and believes that E. P., an employee of your orator, citizen of the United States, was the author, compiler, and designer. That so be- ing proprietor of said book, he did deposit in the office of the librarian of congress, prior to the publication of said book, to wit, the day of , 1894, a printed copy of the title of said book; and your orator says, upon information and belief, that on the day of , 1894, the librarian of congress recorded the name of said book in a book kept by him for that purpose, in the words and manner prescribed by law, as will fully appear from a properly certified copy of said record, which is ready to be produced as your honors may direct. Your orator further shows that before the day of publica- tion of said book, to wit, on the day of , 1894, he 1036 COPYRIGHTS AND TRADE-MARKS. IO37 deposited in the mails at , , addressed to the libra- rian of congress at Washington, D. C, two complete printed copies of said book, of the best edition issued. Your orator further shows that he had caused to be printed on the title-page of the several copies of the said book published by him, the following words, to wit : " Entered according to act of congress in the year 1894 by A. B., in the office of the librarian of congress at Washington, D. C." On information and belief your orator further shows unto your honors that, by virtue of the premises and the laws of the United States relating to copyrights, he has been vested with a copyright on said book entitled [sei forth the title], whereby there is secured to him, and his assigns, the exclu- sive right and liberty of printing, reprinting, publishing, completing, copying, executing, finishing, and vending the same, for the term of twenty-eight years from and after the day of , 1894. Your orator further shows unto your honors that he is now the sole and exclusive owner of said copyright, and of all the rights and privileges granted and secured, or intended to be granted and secured thereby. Your orator further shows that he has invested and expended large sums of money, and has been to great trouble and ex- pense in and about said copyrighted book, in the preparation and publication of the same, and in introducing it to the public, and that said book has been and is of great benefit and advantage to your orator and to the public ; and that the public have generally acknowledged and acquiesced in the aforesaid rights of your orator, and your orator believes that he will realize large gains and profits therefrom if piracy and infringement by said defendant and his confederates shall be prevented. And your orator further shows, upon information and belief, that the defendant, well knowing the premises and the rights secured as aforesaid to your orator, but contriving and intend- ing to injure your orator, and to deprive him of the profits, 1038 COPYRIGHTS AND TRADK-MARKS. benefits, and advantages which might, and otherwise would, accrue to your orator as aforesaid, after the grant of said copyright and before the commencement of this suit, did, at , without the license, and against the will of your orator, and in violation of his said rights, and in infringement of said copyright, unlawfully, wrongfully, and injuriously print, publish, offer for sale, and sell books which are exact fac- simile copies of your orator's said copyrighted book, or sub- stantial portions thereof. And your orator further shows, upon information and belief, that, subsequent to the grant of said copyright, the defendant has in county, at , and elsewhere in the state of , offered for sale, and is now offering for sale, and intends to continue to offer for sale, and to sell books which are cop- ied and pirated from, and are fac-simile copies of your orator's said copyrighted book, or substantial portions thereof, and which the defendant and his agents publicly and openly declare to be like. A. B.'s book, and to contain all the essen- tial features of A. B.'s book. All of which actings and doings by the defendant are ia violation of your orator's exclusive rights as aforesaid, and to- your orator's great and irreparable damage, loss, and injury; by which acts he has been and now is being deprived of great gains and profits which might, and otherwise would, have been obtained by your orator, but which has been received and enjoyed by the defendant by and through his unlawful acts and doings. And your orator further shows unto your honors, on infor- mation and belief, that said defendant has had notice of his said infringement of the rights of your orator in the premises, and has disregarded said notice, and refused to desist from said infringement, and still continues so to do. And your orator further shows unto your honors, on infor- mation and belief, that the defendant has made and realized large profits and advantages from said infringement, but to what extent, and how much exactly, and hov^ many of said COPYRIGHTS AND TRADE-MARKS. IO39 books he has made and sold, your orator does not know, but prays a discovery thereof. And your orator says that the infringement of said copyright by said defendant, and his preparation for and avowed determination to continue said infringement, and other aforesaid unlawful acts in disregard and defiance of the rights of your orator, has the effect to encourage and induce others to venture to infringe said copy- right in disregard of your orator's rights. Wherefore your orator prays that the defendant, C. D., his servants, agents, attorneys, employees, workmen, and con- federates, and each and every of them, may be perpetually restrained and enjoined by order and injunction of this hon- orable court from printing, reprinting, publishing, complet- ing, copying, executing, finishing, and vending books like, or substantially like, or copied, or pirated from the book copyrighted by your orator as aforesaid ; and that said de- fendant may be decreed to pay the costs of this suit, and that your orator may have such further relief as to this honorable court may seem meet, and as shall be agreeable to equity. May it please your honors to grant to your orator the writ of injunction, issuing out of and under the seal of this hon- orable court, commanding, enjoining, and restraining the said defendant and his servants, agents, employees, workmen, and confederates, and each and every of them, during the pen- dency of this suit, as hereinbefore, in that behalf, prayed in regard to said perpetual injunction. And forasmuch as your orator can have no adequate relief except in a court of equity, where matters of this and like nature are properly cognizable and relievable, and to the end therefore that said defendant may, if he can, show why your orator should not have the relief hereby prayed, and may, but not upon oath [the oath being waived] , according to his best and utmost knowledge, remembrance, information, and belief, full, direct, and perfect answers make to all and singu- lar the premises, and to all the several matters hereinbefore stated and charged, as fully and particularly as if severally I040 COPYRIGHTS AND TRADE-MARKS. and separately interrogated as to each and every of said mat- ters, and may be compelled to render an account of the num- ber of copies sold, and pay to your orator the profits by him acquired, and the damages suffered by your orator from such unlawful acts, and that the court may assess said profits and damages [forfeiture of the infringing books being expressly waived]. May it please your honors to grant unto your orator a writ of subpoena, issuing out of and under the seal of this hon- orable court, directed to said defendant, C. D., commanding him, on a certain day, and under a certain penalty, to appear in this honorable court, and then and there to answer the premises, and to stand to and abide such order and decree as may be made against him. And your orator will ever pray. A. B. R. X., Solicitor for Plaintiff. ^Verification. See No. 279.] (i) The circuit court has original jurisdiction without reference to citizenship or value of subject-matter, R. S., Sec. 629, clause 9. As to remedies in equity generally, for ' infringement of a copyright, see Drone on Copyrights, Chap. XI., and case cited in notes. No. 815. Bill in Equity. — Trade-Mark Registered in the United States Patent Office (i). [^CapHon.] To the Honorable Judges of the Circuit Court in and for the District of : B. B. and G. B., citizens of the state of , residing and doing business at , in said state, as copartners under the firm name of B. Bros., bring this, their bill of complaint, against C. D., citizen of the state of , doing business at No. street, in the city of , in said state, and an inhabitant of the district of . COPYRIGHTS AND TRADE-MARKS. IO4I And thereupon your orators complain, and say that since the year 18 — they have been located at , and have been doing business as a copartnership under the firm nams of B. Bros., and during the time since 18 — they have been engaged in the manufacture and sale of cough drops. That for more than seventeen years the said cough drops have been of the general appearance as follows : color, black ; form, circular ; about three quarters of an inch in diameter ; flattened on both sides, one side, however, being somewhat rounded, and being about one-quarter of an inch in thick- ness, having stamped upon one side thereof a star with five points surrounded by a ring at a short distance therefrom, and on the other side stamped B. B. in heavy letters, with a bar above and below the letters ; that said stamps upon the faces of said drops have been for seventeen years and more past adopted and used by your orators as their trade-mark for said drops. That said cough drops have been put up during more than eight years past in pasteboard boxes about three and one half inches long, about two inches wide, and about three quarters of an inch thick, provided with folding ends. The top of each of said boxes has contained, in connection with the representations of the busts of your orators, the following words and letters : B. Brothers' B. B. Cough Drops. B. B. Stamped on each drop. Trade ^% Mark. That upon each of the two ends has been printed "5 Cents," and on one of the sides has been printed " Price 5 Cents," and on the other side have been printed the words "Cough Drops" ; that the lettering, directions, and the cuts representing your orators have been printed upon said boxes in black upon a white ground. That at all times, from the I042 COPYRIGHTS AND TRADE-MARKS. commencement of your orator's business down to the pres- ent time, your orators have manufactured their cough drops of the form specified, and placed them on the market in boxes having the peculiar lettering and representations thereon above specified, and that they have . adopted such peculiar stamping upon the cough drops themselves, and the cuts representing the busts of two men, and the letters B. B. as their trade-marks, together with the peculiar label and form of printing upon said boxes, a sample of which is an- nexed to this bill and marked " Schedule B. Brothers' Box " ; that said trade-marks and the said peculiar form of label were diflferent from any which had ever before been used to designate cough drops or cough syrups, or other analogous remedies ; that the said trade-marks and peculiar form of label and said peculiar words and representations and cuts have been universally known and recognized as indicating that articles having such trade-marks or labels were made by your orators ; and that said peculiar form of label, the trade- mark B. B., and the trade-mark consisting of the representa- tion of the busts of two men, became, and ever since have been, valuable property rights of your orators and a protec- tion to purchasers of cough drops and similar remedies made by your orators, and that the said peculiar form of label and the said peculiar letters " B. B." and the representation of the busts of two men have become and are the trade-marks and exclusive property of your orators, and that your orators are entitled to the sole and exclusive use and benefit thereof, and that they are entitled to recover for damages or profits which have resulted or accrued from the infringement of your orator's said rights. And that your orators further say that they have at all times insisted upon their said trade-marks and their ex- clusive right to said peculiar label, and that they have noti- fied the public thereof; that the said trade-marks and pecul- iar form of label have become universally known as the property of your orators, and have been universally re- spected until the infringement herein complained of. COPYRIGHTS AND TRADE-MARKS. IO43 And your orators further say that for the purpose of in- forming the pubUc of your orators' rights in the premises, and in order that your orators' title might be made more clear and certain, they have caused the said trade-marks to be registered, according to the statutes of the United States, as appears by the certificates of such registration, to wit : cer- tificate No. , registered the day of , appli- cation filed the day of , the essential features of which consist of two bust portraits of male figures, repre- senting the B. Brothers, your orators, and certificate No. , registered the day of , application filed on the day of , the essential features of which trade- mark consist of the letters "B. B.," as by said original certificate of registration, or duly certified copies thereof, here in court ready to be produced, will more fully and at large appear, a copy of the statement, declaration, and repre- sentation of the trade-mark of each of said certificates being hereunto attached and marked respectively, " Schedule trade-mark of two bust portraits," and "Schedule trade-mark B. B." And your orators further say that said trade-marks, referred to in each of said certificates, are adapted to be used and have been used by your orators in connection with a single package of cough drops for more than seventeen years in commerce with Canada and other foreign countries (2), and very extensively throughout the United States ; and that your orators are entitled to the exclusive use of said trade- marks as applied to cough drops, and boxes and packages containing cough drops, cough syrups, confectionery, and analogous remedies, and that said trade-marks have been used by your orators in such commerce in connection with the peculiar label shown in "Schedule B. Brothers' Box." And your orators further say that the cough drops manu- factured and sold by your orators, as aforesaid, have been and are of superior quality, and that said cough drops have been compounded according to your orators' peculiar and exclusive I044 COPYRIGHTS AND TRADE-MARKS. formula, and that the said cough drops have met with great favor as an alleviation of coughs, colds, and hoarsenesss, and that since the time they were first placed upon the market . their reputation has steadily increased and the demand for them has been more and more from year to year, until now your orators' sales amount to more than fifty tons on the average each month. And your orators further show that heretofore in a suit commenced by your orators in the circuit court of the United States for the district of , against A. T. for infringe- ment of your orators' trade-mark rights, said defendant hav- ing in place of the letters B. B upon cough drops used the letters A. T., which said defendant stamped upon his cough drops on one side in connection with a star on the reverse side thereof, and said defendant having in place of two male fig- ures, as shown upon the boxes of yqur orators, substituted the representation or the bust of a male figure substantially like those of your orators, but with some changes in details, a motion for an injunction pendente lite was made and a hearing had upon said motion before his honor J. S., judge of said court, upon the pleadings, affidavits, and exhibits; that upon the day of , 189 — , a decision was rendered in said cause, finding that your orators were entitled to use, have, and enjoy the particular marks adopted by themselves, as above described, and as set forth in the certificates of regis- tration hereto attached, and that the drops made by defend- ant, with the letters A. T. stamped thereon, were an unlawful and wrongful imitation of those made by your orators, and were in violation of your orators' rights to their trade-mark aforesaid, and the defendant in this suit was enjoined and restrained, until further order of the court, from making or selling or using boxes in infringement of your orators' trade- mark rights, or so nearly like the boxes used by your orators as might be calculated to deceive purchasers, as by a certified copy of said decree here in court, and ready to be produced, will more fully and at large appear, a copy of said decree be- ing hereto attached as " Schedule Exhibit A. T. Decree." COPYRIGHTS AND TRADE-MARKS. IO45 And your orators further say that your orators' exclusive rights in the premises are of very' great value in their busi- ness, and that the defendant's acts and doings, hereinafter mentioned, in the infringement of your orators' rights, have caused and are causing your orators great and irreparable pecuniary loss and injury ; that the amount of such direct damage and injury to your orators, as your orators verily believe, amounts to more than two thousand dollars, exclu- sive of interest and costs, and your orators verily believe, if continued, will amount to many thousands of dollars. And your orators further show unto your honors that, not- withstanding^ their said exclusive possession of said trade- marks and said peculiar label, and in violation of your ora- tor's rights, the defendant herein, well knowing the wrong and injury he was thereby doing unto your orators, has made and sold, and is making and selling, in , and elsewhere in the United States, and for commerce with foreign nations and the Indian tribes, cough drops put up in paper boxes identically like the boxes and labels used by your orators, and described in paragraph three of this bill, except that some changes have been made in the features of the cuts of the two male figures, and except that in place of "B " the word "D " has been employed, and "C. D." instead of "B. B," and " , ," instead of " , ." The cough drops made and sold by defendant as aforesaid have stamped thereon a five-pointed star on one side, and on the other the letters " D. D." with a bar below the letters. And your orators further allege, upon information and belief, that the cough drops made and sold by defendant are of inferior quality, and have been sold by defendant to dealers at a price less than the price at which your orators have sold their cough drops, and that the words "D. D." marked upon defendant's labels do not represent any firm, individuals, or corporation in any way interested in or con- nected with the manufacture and sale of the defendant's said cough drops ; but that the defendant wickedly, fraudulently. 1046 COPYRIGHTS AND TRADE-MARKS. and falsely has adopted the same for the purpose of deceiv- ing the public and inducing purchasers of their inferior and unwholesome product to believe that the same is of the man- ufacture of your orators herein, and thus to palm off his in- ferior product upon the public ; and that the public have to pay the retail dealers for defendant's inferior and unwhole- some product the same that is charged for your orator's superior cough drops, and that the public have been thus deceived and have been induced to purchase defendant's un- wholesome product, and that the reputation of your orators has been greatly damaged. To the end, therefore, that the defendant may, if he can, show cause why your orators should not have the relief prayed, and may make a full disclosure and discovery of all the matters aforesaid, but not upon oath, answer under oath being waived, and according to the best and utmost of his knowledge, remembrance, and information and belief, full, true, direct, and perfect answer make to the matters herein- before stated and charged. And that the defendant may be decreed to account for and pay over to your orators the income and profit thus unlaw- fully derived from the violation of said trade-marks, and your orators' exclusive rights in and to the use of the same, and your orators' exclusive rights to the said peculiar label, and be restrained from any further violation of said rights, your orators pray that your honors may grant a writ of in- junction, issuing out of and under the seal of this honorable court, perpetually enjoining and restraining the said defend- ant, his clerks, attorneys, agents, servants, and workmen, from any use in any manner of said trade-marks, or any part thereof and of said label of your orators' in violation of your orators' rights as aforesaid. And that your honors, upon rendering of the decree above prayed, may assess, or cause to be assessed, in addition to the profits to be accounted for by the defendant, as aforesaid, the damages your orators have sustained by reason of such infringement. COPYRIGHTS AND TRADE-MARKS. IO47 And your orators further pray that a provisional or pre- liminary injunction be issued restraining the said defendant from any further infringement of said trade-marks pending this cause, and for such other and further relief as the equity of the case may require, and to your honors may seem meet. May it please your honors to grant unto your orators, not only a writ of injunction conformable to the prayer of this bill, but also a writ of subpoena of the United States of America, directed to the said C. D., commanding him on a day certain to appear and answer unto this bill of complaint, and to abide and perform such order and decree in the prem- ises as to the court shall seem proper, and required by the principles of equity and good conscience. R. X., Attorney for Plaintiff. (i) The entire Act of July 8, 1870 (R. S., 4937 to 4947), and the Act of August 14, 1876 (19 Stat, at L. 141), relating to trade-marks, are in- valid. For construction of these statutes, see Trade-Mark cases, 100 U. S. , 82 ; Baldwin vs. Fr&nks, 120 U. S., 687. In framing a bill for in- fringement of a trade-mark registered under the Act of March 3, 1881, (21 Stat, at L., 502, chap. 138), it is safer practice to make allegations suflScient to sustain a bill on a common law trade-mark. The act of March 3, 1881, was evidently drawn with reference to an intimation of the supreme court in deciding the trade-mark cases (100 U.S. 82). This legislation, however, has been recognized without question as to its validity in Luyties vs. Holendeer, 30 Fed. Rep., 632 ; Glen Cove Mn'fr Co. vs. I,udeman, 23 Blatchf. 46 ; Pratt Mn'fr Co. vs. Astral Refin- ing Co., 27 Fed. Rep., 492. The 8th clause of Sec. 8 of the first article of the Constitution of the United States (patent and copyright clause) does not confer requisite authority of Congress, and the Act of March 3, 1881, evidently refers to the 3d clause of the same section for the requisite authority. See Trade-Mark cases supra. (2) A circuit court has no jurisdiction of suits for the infringement of a trade-mark if the plaintiff and defendant are citizens of the same state, and the bill does not allege that the trade-mark in controversy was used on goods intended to be transported to a foreign country ; see Ryder vs. Holt, 128 U. S., 525 ; or used in lawful commercial inter- course with an Indian tribe. Schumacher vs. Schwenke, 26 Fed. Rep., 818. In a suit to restrain the infringement of a trade-mark the 1048 COPYRIGHTS AND TRADE-MARKS. amount in dispute in determining the jurisdiction does not depend upon the profits sought to be recovered. Symonds vs. Greene, 28 Fed. Rep., 834; see also Act of March 3, 1881, 21 Stat, at L. 502, Sec. 7, last clause, and Sec. 11. No. 816. Allegation of Prior Adjudication. See form No. 756 No. 817. Bill in Equity.— Common Law Trade-mark. (Aliens against Citizens) (i.) The Circuit Court of the United States for the District of . A. B., C. D., and E. F., partners as A. B. & Co.,^ PlaintifiFs, z's. V In Equity. G. H. and J. K., partners as G. H. & Co., Defendants. J To the Honorable, the Judges of the Circuit Court of the United States for the District of , sitting as a Court of Equity. A. B. and C. D., both of city of , in the Kingdom of Prussia, and Empire of Germany, and both of whom are aliens, and subjects of the King of Prussia and Emperor of Germany, and E. F. of the city of , in the Republic of France, and who is an alien and citizen of the Republic of France, show unto your honors that they, the said A. B., C. D., and E. F., are copartners, lawfully engaged in business at the said city of , in said Republic of France, under the firm name of A. B. & Co , and do bring this their bill of complaint against G. H. and J. K., of the city of , in the county of , and state of , who are copartners, engaged in business in said city of , under the firm name of G. H. & Co., and all of whom are citizens of the said state of , and inhabitants of said district of , and here- inafter referred to as the defendants. COPYRIGHTS AND TRADE-MARKS. IO49 And, therefore, your orators complain and say that they are manufacturers of [champagne wine], doing business at said city of , and that they are the successors in business of the original firm of A. B. & Co., of said , which firm was established during the year i8 — ; that they now conduct and carry on the business by said firm of A. B. & Co., and their successors, established and built up during many years, and own and occupy the premises by their predecessors occupied, and are vested with all the rights of each and all their predecessors, all and singular, including the good will of their business, and businesses, and their trade-marks, brands, names of trade, and duplicate copies of which have been deposited in the patent office of the United States, and your orators are in all things vested with all the rights and inter- ests of their predecessors in business, all and singular, and are the owners thereof. And your orators further say that the [champagne wine], by them manufactured, now enjoys, and has for many years enjoyed, a high reputation in the markets of the United States and elsewhere, where it is now and for many years has been sold in large quantities, and that by reason of its superior quality, and the diligent efforts of your orators in the prem- ises, there has been established and now exists in the United States and at the city of , and elsewhere, a very large and profitable business in the importation and sale thereof, which business is now by them carried on and is a source of great profit. And your orators further say that they have heretofore introduced into the markets of the United States a certain [champagne wine] of superior quality, which has been known, identified, referred to, and called for as ["Mumm's Extra Dry"], which has long been, and is now, in very great demand, and known, referred to, and' distinguished by the said designation [Mumm's Extra Dry," or, "Extra Dry Mumm"], and in many instances as ["Extra Dry"], the 1050 COPYRIGHTS AND TRADE-MARKS. word ["Mumm"] being understood by reason of the great popularity and extensive use of the said wine. And your orators further say that their said ["Extra Dry" champagne] has been put up in bottles of the customary shape and sizes, to which have been applied and attached labels bearing your orators' firm name, the principal label on each bottle being a label of octagonal shape, the central field of which has been occupied by the words and letters "Extra Dry. A. B. & Co.," all as appears by a specimen of the said label hereunto annexed and marked "Plaintiffs' Label." And the said ["Extra Dry" champagne] has also been dis- tinguished and identified by reason of its bearing a certain rose-colored capsule, as will more fully appear by a bottle of plaintiffs' said [wine] herewith produced, marked [" Plaint- iffs' Wine"], an J made a part hereof. And your orators further say that the said label hereto at- tached has been used without change for a period of more than years past, and is now in use, and your orators aver that they have the exclusive right to use the said label, and also the said capsule, and that the same are their prop- erty for the uses and purposes aforesaid, to which they are entitled to the exclusion of all others. And your orators further say, upon information and belief, that the said defendants are engaged in business as dealers in [wines and liquors] in the city of , and that the said defendants have, well knowing your orators' rights in the premises, and since your orator's rights were acquired, and since they became exclusively entitled in the premises as aforesaid, to wit, since the day of , 18 — , in said district of , and elsewhere, and wholly without your orators' consent, and in violation of their rights aforesaid, fraudulently and unlawfully offered and sold a so-called [champagne wine] of "very inferior quality, not manufactured by or for your orators, which has been put up and contained in bottles resembling those used by your orators, to which they have attached or applied a label, or labels, consisting in COPYRIGHTS AND TRADE-MARKS. IO5I part of the words and letters [" Mumm's Extra Dry, S. B. and G. D."], the labels being of substantially the same size and shape as the label used by your orators and hereinbefore described, and a specimen of which labels so by the defend- | ants used is annexed to the bottle produced herewith, marked [" Defendant's Wine "], and made a part hereof. And your orators in like form and manner charge that the said defendants have made use of a rose-colored cap like that used by your orators, and hereinbefore described, as ap- pears by a specimen of said cap forming a part of the exhibit herewith produced, marked ["Defendant's Wine"], which exhibit is a bottle of the [wine] actually sold by the defend- ants, and which is made a part hereof. Your orators say, on information and belief, that the said so-called [champagne] of the defendants, sold by the defend- ants, as hereinbefore recited, and marked, labeled, and identi- fied as aforesaid, is a cheap and inferior liquid manufactured in the United States, and that the statements of said label hereto attached, marked "Defendant's Label," are all and singular without foundation. There is no such house or firm in existence at , or elsewhere, as " S. B. and G. D.," nor is there any such firm in New York as " W. G. & Co.," nor is the so-called [wine] of the defendants an ["Extra Dry " champagne]. Your orators' representatives in the United States are the firm of " F. D. & Co.," and who also represent " Messrs. D. & Co.," of , for which reason your orators believe the names " B. & D." were associated together and used in said label. Your orators charge that the bottle of [wine] herewith pro- duced, marked [" Defendant's Wine,"] was actually sold by the defendants at the time and place aforesaid, and that the defendants have also sold a large number of other bottles of [wine] in every way like it, as and for your orators' [wine] , and a wine of their production, and as their well-known ["Extra Dry,"] and as and for ["Mumm's Extra Dry,"] and the champagne hereinbefore referred to, in violation of 1052 COPYRIGHTS AND TRADE-MARKS. your orators' rights in tlie premises, and to their great loss and injury. And your orators say that the acts of the defendants here- inbefore recited, and the false and fraudulent use of the word [" Mumm,"] and the said label designated "Defendant's Isabel," constitutes an unfair and fraudulent competition in business and are inequitable and unlawful, and have enabled and necessarily have the effect of causing the sale and sub- stitution of the [wine] bearing the defendants' said label for the wine of your orators, to their great injury, and to the injury of the public. And your orators further say that by reason of the prem- ises aforesaid, and their long, continuous, and uninterrupted use of said words, [" Mumm's Extra Dry,"] which designa- tion has been by them and their predecessors used as afore- said continuously and exclusively for a period of not less than years last past, and by reason of the very large and valuable business and good- will createci by them ;in the United States, they have acquired in respect of the de- signation [" Mumm's Extra Dry "] certain rights which will be protected in equity as against the false and fraudulent use by the defendants of the said designation as hereinbefore set forth, and which rights they pray may be protected as here- inafter more specially prayed. ' And your orators further show that they cannot with cer- tainty state the exact amount of the profits diverted by the said defendants, but believe the same to be of the full sum of five thousand dollars, and so charge the fact to be, and pray that the said defendants make full and true disclosures as to the same, and may be decreed to account therefor in full, and otherwise to respond in damages as may appear to be equitable. To the end, therefore, that your orators may obtain relief in the premises in this honorable court where they alone can obtain relief, they humbly pray : First. That the said G. H. & J. K. may be made defend- ants to this bill, and compelled to answer each and every COPYRIGHTS AND TRADE-MARKS. IO53 allegation therein contained, but not under oath, the same being waived and as fully and directly interrogated as to each. Second. That the said G. H. and J. K. may be compelled to render, before a commissioner of this court, a full, true perfect, and complete account of all profits diverted from your orators, or made by the unlawful use of the word [" Mumm,"] or by the sale of goods in connection with the name ["Mumm "] shall have been by him unlawfully used, and may be decreed to pay unto your orators the full amount of such profits. Third. That the said G. H. and J. K., their agents and servants, and all claiming or holding through or under them, be forever enjoined and restrained from in any form or man- ner whatsoever making use of the name [" Mumm "] in con- nection with any fluid not manufactured by your orators, having the characteristics of [champagne], and from using said word [" Mumm "] as part of a label or labels, and from using it as part of a mark or brand, and from in any way at- taching, afiirming, or applying the name ["Mumm"] by means of labels or otherwise, to bottles containing a fluid not of your orators' manufacture, having the characteristics of [champagne wine], and from making use of labels like the label designated " Defendant's I/abel," and otherwise in every way enjoining and restraining them from any and every unlawful and untruthful use of the said name [" Mumm,"] and any and every name or word which is sub- stantially like it. Fourth. That a preliminary injunction may be issued without delay, restraining the said G. H. and J. K. in every way as prayed in the preceding paragraph numbered three. Fifth. And, finally, to the end that equity may become and the relief herein prayed for, and all other relief that it may be righteous in the premises to administer, may be af- forded your orators, may it please your honors such, relief fully to grant, and to award against the said G. H. and J. K. a writ of subpoena ad respondendum of the United States I054 COPYRIGHTS AND TRADE-MARKS. of America, issuing out of and under the seal of this honor- able court, commanding them on a day certain therein to be named, and under a certain penalty, to be and appear in this honorable court, then and there to answer all and singular the premises, and to stand to, perform, and abide such fur- ther order, direction, and decree as may be made against them. And your orators as in duty bound will ever pray. X. & X., Solicitors for Plaintiffs. R. X., of Counsel. United States of America, State of , County of , ss. A. D., being duly sworn, deposes and says as follows, to wit: I am a member of the firm of F. D. & Co., of the city of , in the county and state of , which said firm are now and have been for upwards of fifteen years last past, the sole agent of the plaintiffs in the United States, for the importation and sale of plaintifis' [champagne wine]. I have read the foregoing bill of complaint and know the contents thereof; I know of my own knowledge that all the matters and things stated concerning the acts of the plaintiffs are true, and as to all other matters and things, I verily believe them to be true. The plaintifis reside in Europe, which is the reason this affidavit is made by me. A. D. Sworn to and subscribed to before me this day of , 1891. J. N., [&«/.] Notary Public in and for County. (i) Taken from the record in Peter H. Von Mumm, etal., vs. Morris Mihalovitch, et al., in the Circuit Court of the United States for the- Southern District of Ohio. See note to No. 816. COPYRIGHTS AND TRADE-MARKS. IO55 No. 818. Allegation of Assignment Before Bringing Suit. See form No. 753. No. 819. Bill of Complaint Charging Unfair Competition. To the Hon. the Judges of the Circuit Court of the United States in and for the District of : First. The Plant Company, a corporation existing under the laws of the state of , resident of said state, and a citizen of said state and of the United States, and having its principal place of business in , in said state, brings this, its bill of complaint, against the May Company, a corporation organized and existing under the laws of the state of , a citizen of said state and of the United States, having its usual place of business in the city of , in said state. Second. And thereupon your orator complains and says that your orator, the said corporation, The Plant Company, was or- ganized under and pursuant to the laws of the state of , the day of , A. D. , and has been continuously since then engaged extensively in the manufacture of boots and shoes ; that its said business has grown rapidly until now and for several years last past i-ts sales have reached every state of the United States and nearly every city, large and small, therein, and throughout many foreign countries, your orator's business being prosecuted by means of extensive ad- vertising and numerous agents, who solicit the retail trade throughout the United States and abroad; tip to the year 1898, your orator followed to some extent the usual custom of the trade in disposing of its product, but in the year 1898 it bought out the business in a certain line of Queen shoes of the Clark Company, and has ever since and including the year 1898, sold said Queen shoes under a new policy and system. Third. The Clark Company is a corporation existing under 1056 COPYRIGHTS AND TRADE-MARKS. the laws of the state of , and was organized , and is one of the large shoe corporations in , having carried ever since its organization a large line and variety of men's, women's and children's shoes. At the time of its or- ganization in 1892, the Clark Company adopted the trade- mark Queen for one of its special lines of ladies' shoes, and it offered for sale and sold the said Queen shoes continuously from said adoption until the transfer of said trade-mark Queen and the business connected therewith to the Plant Company. On the day of November, A. D. , the Clark Com- pany formally transferred to the complainant herein, its said trade-mark Queen and all the business connected therewith, according to a written assignment executed on said day, as will more fully appear from the original assignment, profert of which is hereby made to be produced at such time and place as your honors may direct ; all the terms and conditions of said assignment were duly and faithfully performed by both parties thereto, and the said business has been carried on continuously ever since by your orator. Fourth. As a result of your orator's enterprise, integrity and skill, and of the high quality and uniform excellence of the shoes manufactured and put upon the market by your orator, it has acquired a recognized and enviable reputation through- out the United States and in many foreign countries for re- liability, enterprise and honorable dealing. Ever since and including the year 1898 your orator has devoted its main energies to its said Queen shoe, and has directed all its skill of workmanship, business ability and advertising to the im- provement of said shoe and the extending and promoting of its reputation throughout the country; the shoe has been brought as near perfection as possible in beauty and excel- lence of finish, and likewise the most artistic and extensive advertising has been lavishly employed at great expense, and in connection with the trade-mark Queen your orator has em- ployed a representation or picture of a queen (using the famous picture of Queen Louise) and has surrounded and em- COPYRIGHTS AND TRADE-MARKS. IO57 bellished the carrying word Queen oi the trade-mark by an ornamental wreath, and has employed the words Queen Qual- ity in connection with a capital Q, having a long flourish partially embracing the said words, the whole being a script. Besides the foregoing, your orator has in every way within its power sought to educate the purchasing and reading pub- lic into understanding and recognizing that the Queen shoe meant your orator and in identifying its said shoe as its manu- facture. Your orator and its predecessor, the Clark Com- pany, adopted the said name Queen in order to establish a trade-mark for said ladies' shoes, which would indicate by its distinctive appearance and association, to the general public the origin of said shoes, and your orator avers upon informa- tion and belief that the name Queen was wholly original with and first adopted and used by your orator's predecessor, and was distinct from any trade-mark, symbol or designation ever before applied to' ladies' shoes. Your orator and its predeces- sor has faithfully thus marked all its said line of ladies' shoes since and including the year 1892, and has exerted itself in various ways and at great expense to bring the name Queen and the more embellished and technical mark Queen Quality prominently before the public in order that said name and brand should become familiar, famous and a household word with the purchasing public and be understood as indicating the superior and uniformly excellent ladies' shoes of your orator's manufacture. In pursuance of the said object your orator has extensively advertised its said ladies' shoes, particularly in the popular magazines, the leading local newspapers in most of the cities of the United States, and by circulars, booklets and advertising novelties. Your orator hereto annexes specimens of such advertisements, the same being marked " Complain- ant's Exhibits, Specimen Advertisements," together with th- name of the paper or magazine, the date of its issue and place of publication. Fifth. It has been the uniform policy and practice of your orator, in conducting the business in connection with said IO5S COPYRIGHTS AND TRADE-MARKS. Queen shoes, to place its shoes on sale through one and only- one leading retail dealer in each city, as its sole agent in said city, and to sell all of its large variety of over forty different styles at the uniform price of three dollars per pair of shoes, said uniform price being maintained throughout the entire United States, the retail trade being solicited by your orator's traveling salesmen throughout the United States ; your orator has commonly furnished to the said retailers who are its local agents, electro-plates for use in local advertising, said electro- plates all containing the words Queen or Queen Quality, and representations of the shoe, as appears in the exhibit specimen advertisements hereto annexed, and in many of these advertisements, which were directed to the consumers the names of the retailers from whom your orator's Queen shoes might be obtained were printed in connection with said adver- tisements. Your orator has not only given these agents the benefit of its said advertising and had its said' agents advertise in the local papers, but in order to still further identify its agents with its goods, it has sometimes woven its local agents' names into the facing lining of the shoes adjacent a similarly woven reproduction of its trade-mark. As a result of the superiority of your orator's goods, and its skill and enterprise in pushing and advertising the same, as above represented, your orator has obtained an extensive and lucrative business in its said line of Queen shoes, and the name Queen or Queen Quality (the former being the usual popular name by which the public calls for said shoes) has become widely and favor- ably known in connection therewith throughout the United States, and has become associated and identified with your orator's manufacture, and with your orator's manufacture only, in the minds of consumers all over the United States. Sixth. Your orator further avers that the public and trade generally (except for the acts of the defendant hereinafter set forth) have acquiesced in and recognized your orator's ex- clusive rights to said trade name and mark, and have refrained from using the same or any such near imitation thereof as would create confusion in the minds of consumers between COPYRIGHTS AND TRADE-MARKS. IO59 shoes of your orator's manufacture and shoes made by its competitors; and your orator has received from the manu- facture and sale of said shoes so designated large gains, and profits, and would continue to receive such gains and profits except for the unlawful acts of the defendant hereinafter stated, from the continuance of which acts, if the defendant be not restrained therefrom, your orator will suffer great and irreparable loss and damage. Seventh. Defendant, well knowing the premises, and sub- sequent to the said adoption and use by your orator as here- inbefore urged, disregarding all rights of your orator, and fraudulently and with intent to deceive the public and to induce the public to purchase other and spurious goods by mistake for those of your orator, and with intent to falsely identify himself and his business with that of your orator, and to fraudulently and deceptively palm ofif his goods upon the purchasing public as and for ycr orator's goods, and thereby to obtain the trade and custom of those who otherwise would purchase your orator's goods, and with intent to obtain the benefit of your orator's advertising without himself doing such advertising, and without having any reputation of his own, but unfairly relying upon the widespread advertisements and reputation of your orator, and the demand of the public for your orator's Queen ladies' shoes, and thereby to injure your orator and seriously damage its business, has recently and now is unlawfully and without permission of your orator, selling and offering for sale in said city of , large num- bers of ladies' shoes not of complainant's manufacture, un- der the trade-mark or designation Queen ; and the defendant, as your orator is informed and believes, has and still is ad- vertising his said fraudulent ladies' shoes as Queen shoes, wording his advertisements in such manner as to make it deceptively appear that he is selling and offering for sale your orator's said genuine shoes, and defendant offers for sale and is selling and has sold said fraudulent shoes as and for your orator's genuine Queen shoes, and for the purpose of deceiving I060 COPYRIGHTS AND TRADE-MARKS. the public and purchasers of such shoes and inducing them by the use of said trade name and advertisement to pur- chase defendant's shoes as and for the shoes of complainant's manufacture, which said purchasers desired and would other- wise have purchased. Said purchasers are and have been thereby deceived and misled by the aforesaid unfair competi- tion by the defendant and also by the aforesaid direct infringe- ment by said defendant of your orator's trade-mark rights. Defendant, as your orator is informed and believes, uses in certain of its advertisements the words, " The only store in which sells the Plant's $3.00 Queen Quality La- dies' Shoes for $2.50," and in others of its said advertise- ments employs the words, " Our * Queen ' is a shoe to be relied upon — look for the label ' Queen,' $2.50," and on certain of its shoes which the defendant fraudulently sells as and for your orator's manufacture, but which are not of your orator's manufacture, it has caused to be placed and stamped or woven facing facing lining containing the word Queen in script with a capital Q, the same as employed by your orator, and with an imitation of a wreath surrounding the same, to- gether with other embellishments and the words, " The May Company, of ," thus making it deceptively ap- pear that the May Company, of , is the author- ized agent of your orator for your orator's Queen shoes. And as still further showing the fraudulent intent and deceptive purpose of defendant, your orator avers upon information and belief that defendant craftily keeps a few of your orator's gen- uine Queen shoes in stock for the purpose of occasionally sell- ing a pair thereof in order that when charged with selling the other spurious shoes it may speciously state that it is selling your orator's genuine shoes. And your orator avers that de- fendant is prepared and ready to sell and advertise such spu- rious ladies' shoes under the name Queen and intends and threatens so to do, and unless enjoined from so doing it will cause your orator great and irreparable injury. Your orator further avers on information and belief that the defendant has COPYRIGHTS AND TRADE-MARKS. I06I repeatedly been duly notified of the violation of your orator's rights complained of in this bill. Eighth. For as much as your orator can nave no adequate relief except in this court, and to the end therefore that the defendant may, if it can, show why your orator should not have the relief hereby prayed, but may make a full disclosure, discovery and answer of all the matters aforesaid (but not under oath, which is hereby expressly waived, excepting as to the following interrogatories), and may in addition thereto under its corporate seal and the oath of its proper officer, to the best and utmost of its knowledge, remembrance, informa- tion and belief, full, true and perfect answer make to each of the several interrogatories hereinafter numbered and set forth ; that is to say : First. Whether it has or ever has had in stocK any of your orator's genuine Queen Quality shoes and the total number of pairs thereof. Second. From whom and by what agency or means did it procure the shoes inquired about in interrogatory i. Third. Whether it has or has had in stock any shoes not of complainant's manufacture marked with the word Queen, either on any part of the leather or any part of the lining or facing, or on the carton containing the shoes, and the total numbers of pairs thereof ever at any time in defendant's pos- session. Fourth. From whom did defendant purcnase or receive the stioes inquired of in interrogatory 3. Fifth. From whom did defendant receive the facing linings lor certain of its shoes not of complainant's manufacture (whether said linings were received alone or with said shoes or in said shoes) containing the word Queen woven therein. Sixth. At whose order or direction were the said facing lin- ings woven containing the said word Queen referred to in in- terrogatory 5. Seventh. What firm, manufacturer or person wove the fac- I062 COPYRIGHTS AND TRADE-MARKS. ing linings containing the word Queen referred to in interrog- atory 5. Ninth. And your orator avers that it has suffered damage to the extent of much more than $2,000 (two thousand dol- lars) by reason of the aforesaid unlawful acts of the said de- fendant, and that if the defendant is allowed to continue said unlawful acts, he will completely destroy the value of your orator's trade name or trade-mark, which is greatly in excess of $2,000. Tenth. Your orator prays that the said defendant, its offi- cers, attorneys, agents and servants, be perpetually enjoined and restrained by writ oi injunction issuing out of and under the seal of this honorable court from further ,infringing upon the rights of your orator in the premises, and especially from employing or using the aforesaid trade name or mark Queen or any variation thereof, either alone or in connection with other words, figures, S3mibols or accompaniments, upon or in connection with boots or shoes or in any way connected with the sale or offering for sale thereof, whether on any label, carton, advertisement, circular, card, letter-head, or in any other way whatever tending and calculated to deceive the pub- lic; and that the said defendant, its officers, attorneys, agents and servants, be in like manner and effect provisionally en- joined and restrained during the pendency of this suit, and that your orator may have its costs and charges in its behalf paid by the defendant, and such other further relief as to the court shall seem meet and justice and equity may require. That the defendant account to and with your orator for the amount of ladies' shoes unlawfully sold by it by reason of its unlawful marking, labeling and advertising and for the dam- ages which your orator has sustained thereby. May it please your honors, the premises considered, to grant unto your orator not only writs of injunction conformable to the prayer of this bill, but also a writ of subpoena issuing out of and under the seal of this honorable court, directed to the said defendant. May Company, commanding it by a cer- COPYRIGHTS AND TRADE-MARKS. IO63 tain date and under a certain penalty to be therein expressed, to appear and abide by such order and decree herein as to your honors shall seem meet and as shall be agreeable to equity and good conscience. And your orator, as in duty bound, will ever pray. \_Seal.'\ The Plant Company, G. P., President. X. & X., Solicitors for Complainant. (i) Taken from the record in Plant Co. vs. May Co., 100 Fed. Rep. 72, C. C. A. No. 820. Demurrer to Bill for Infringement of a Trade-Mark. [^C option.] The demurrer of the C. D. Company, defendant, to the bill of complaint of the above named complainant. This defendant, by protestation not confessing or acknowl- edging all or any of the matters or things in the said bill of complaint contained to be true in such manner and form as herein set forth and alleged, doth demur to the said bill, and for cause of demurrer showeth : First. That the said complainant has not, in and by the said bill of complaint, made or stated the ownership of any valid trade-mark, or any trade-mark upon which it is entitled to the relief prayed, or to any relief from or against this defendant, because of the use of the numbers referred to in the said bill of complaint. Second. This defendant for the second cause of demurrer shows, that the said complainant has not shown any legal or equitable title to the subject matter of the printed catalogue, submitted by the said bill of complaint, and against the publi- cation of which it asks relief; and that on the face of the bill, and the catalogues submitted, the said complainant is not en- titled to the relief prayed, or any relief against the publication of the catalogues of this defendant. 1064 COPYRIGHTS AND TRADE-MARKS. Wherefore, and for divers other good causes of demurrer not appearing on the said bill, the defendant doth demur thereto, and it prays the judgment of this honorable coiirt, whether it shall be compelled to make any further answer to "the said bill, and humbly prays to be hence dismissed with its reasonable costs in this behalf sustained. R. Y., Solicitor for Defendant. No. 821. Decree Sustaining Demurrer to Bill Charging Unfair Com- petition. [Caption.] In this cause the demurrer of said defendants to such parts of said complainant's said bill of complaint as refer to al- leged fraudulent imitation of complainant's section book-cases, came duly on for hearing and was argued by counsel for the respective parties, and, the premises being seen and fully un- derstood, it is ordered by the court that said demurrer be and the same is hereby sustained; and the said complainant thereupon waiving in open court the right to further amend its said bill of complaint, it is thereupon, further ordered by the court that said bill of complaint, in so far as it relates to such fraudulent imitation, be and the same hereby is dis- missed. No. 822. Petition for Seizure of Goods for Infringing Copyrights (i). The District Court of the United States for the District of . A. B. & Co. vs. Petition. C. D. Publishing Co. First. The plaintiffs, A. B. and S. B., doing business as A. COPYRIGHTS AND TRADE-MARKS. IO65 B. & Co., say that each of said partners is a citizen of the state of , residing at , in said state, and that the defendant, the C. D. PubUshing Company, is a corporation organized un- der the laws of the state of , and having its principal place of business at , within said District of . Second. That heretofore, and prior to the day of , said plaintiffs, under the name of A. B. & Co., designed and engraved a print, cut or engraving styled \_set forth name of GUI'] , for the purpose of vending the same, and thereafter, be- fore the day of the first publication anywhere, and on the day of , deposited a printed copy of the title of the same as aforesaid, and filed a description and two copies thereof, in the office of the Librarian of Congress, at Washington, Dis- trict of Columbia, pursuant to the provisions of the statutes of the United States, in such case made and provided, and such title was, on said day, recorded in the words following, to wit : [Set out the certificate of the Librarian of Congress.] Third. That the plaintiffs claim, and have always claimed, the exclusive right to make and sell said print, cut or engrav- ing, and have printed upon each and every copy made by the plaintiffs the provisions prescribed by the statutes of the United States, to wit : " Copyright, 1898, by A. B. & Co., Buffalo, N. Y." ; that the defendant, the C. D. Publishing Company, after the recording of the title of said print, cut or engraving, and the filing of a description thereof, and contrary to the provi- sions of the Acts of Congress, passed March 2, 1895, and constituting Section 4965 of the Revised Statutes of the United States as amended, and without the. consent of the plaintiffs, the proprietors of the copyright above mentioned, fraudulently did reproduce, copy, print and publish such design or print, with the intent to deprive the plaintiffs of the benefits of their said copyright, and now has in its possession and exposed for sale copies of said design, the actual number of which is un- known to the plaintiffs, but which they estimate at thou- sand ; that by reason of the premises and by force of the stat- I066 COPYRIGHTS AMD TRADE-MARKS. utes of the United States an action has accrued to the plaintiffs, and the defendant has forfeited to them, as the proprietors of said copyright, the plates on which it has reproduced said copyrighted article, together with all copies thereof in the de- fendant's possession, and has forfeited to the plaintiffs and the United States one dollar for every sheet of th€ same found in its possession; that the plaintiffs are the owners, and en- titled by reason of the facts aforesaid to the possession of all of such plates and reproduced prints; that said plates and prints were made, and are now detained and held, by the de- fendant wrongfully, fraudulently and unlawfully, and that the plaintiffs are entitled thereto. Wherefore, the plaintiffs pray for the process of this court to the end that all plates and copies of the prints made in violation of their copyright, and now in the possession of said defendant, as hereinbefore set forth, be seized, forfeited and delivered to the plaintiffs, and that the plaintiffs also have judg- ment for the costs of this action. X. & X., Plaintiffs' Attorneys. ^Verification.] (i) "The provision for a forfeiture of the plates and copies contem- plates an action in the nature of replevin for their seizure, and in addition to the confiscation of the copies, for a recovery of one dollar for every copy so seized and found in the possession of the defendant." Mr. Jus- tice Brown in BoUes vs. Outing Co., 175 U. S. 266; Falk vs. Curtis Pub. Co., 107 Fed. Rep. 126; Child vs. New York Times Co., no Fed Rep. 527. The District Court has jurisdiction of suits for forfeiture and penalties. R. S., Sec. 563, third. No. 823. Writ of Seizure of Goods Claimed to Infringe a Cop3rright. The President of the United States of America to the Marshal of the District of , Greeting : Whereas, a petition under oath has been filed in the District Court of the United States for the District of , this day of , in an action by the plain- tiffs, A. B. & Co., against the defendant, the C. D. Pub- COPYRIGHTS AND TRADE-MARKS. IO67 lishing Company, arising under Section 4965 of the Revised Statutes of the United States, for the seizure and deUvery to the plaintiffs of all the plates and copies of all prints alleged to have been made in violation of three different copyrig^hts owned by the plaintiffs, and described in said petition and affi- davit as hereinafter set forth, and praying that the process of the said court issue in that behalf, and that the property hereinafter mentioned be adjudged the property of the plain- tiffs, according to the statutes in such case made and provided ; and a sufficient bond or undertaking having been filed : Now, therefore, you are hereby commanded to seize, hold and deliver to the plaintiffs, as prescribed by law, all plates or stones, and copies of all prints, cuts or engravings, found in the possession of the defendant, the C. D. Publishing Com- pany, and which reproduce or copy the designs, prints, cuts or engravings covered by the copyrights held by the plaintiffs and described as follows : [Describe the property to be seized.'^ And what you shall have done in the premises, do you make return thereof, together with this writ, on the day of , at ID o'clock in the! forenoon of that day, if the same shall be a day of jurisdiction, otherwise on the next day of jurisdiction thereafter. Witness, the Hon, G. R., judge of said District Court of the United States, at , this day of , in the year of our Lord one thousand nine hundred and , and of the independence of the United States of America the one hundred and . B. R., Clerk. {^Marshal's return to same.'\ The United States of America, — — District of , ss. I hereby certify that I received the within writ on the day of , and that I have executed the same by seizing ten thousand five hundred and ninety (10,590) copies of eight- page prints and thirteen thousand two hundred and five (13,205) copies of four-page prints as described in the within I068 COPYRIGHTS AND TRADE-MARKS. writ, and five (5) metal electrotype plates, and have the same now in my possession. A. D., U. S. Marshal, Fee $1.50 Expense 10 By J. D., Deputy. $1.60 No. 823a. Petition for Penalty for Infringing Copyrights (i). The District Court of the United States for the District of . A. B. & Co. , vs. I Petition. C. D. Publishing Co. J First. The plaintiffs, A. B. and S. B., doing business as A. B. & Co., say that each of said partners is a citizen of the state of , residing at , in said state, and that the defendant, the C. D. Publishing Company, is a corporation organized un- der the laws of the state of , and having its principal place of business at , within said District of . Second. That heretofore, and prior to the day of , said plaintiffs, under the name of A. B. & Co., designed and engraved a print, cut or engraving styled [set forth name of cut'] , for the purpose of vending the same, and thereafter, be- fore the day of the first publication anywhere, and on the day of , deposited a printed copy of the title of the same as aforesaid, and filed a description and two copies thereof, in the office of the Librarian of Congress, at Washington, Dis- trict of. Columbia, pursuant to the provisions of the statutes of the United States, in such case made and provided, and such title was, on said day, recorded in the words following, to wit : [Set out the certificate of the Librarian of Congress.] Third. That the plaintiffs claim, and have always claimed. COPYRIGHTS AND TRADE-MARKS. I069 the exclusive right to make and sell said print, cut or engrav- ing, and have printed upon each and every copy made by the plaintiffs the provisions prescribed by the statutes of the United States, to wit: " Copyright, 1898, by A. B. & Co., Buffalo, N. Y." ; that the defendant, the C. D. Publishing Company, after the recording of the title of said print, cut or engraving, and the filing of a description thereof, and contrary to the provi- sions of the Acts of Congress, passed March 2, 1895, and constituting Section 4965 of the Revised Statutes of the United States as amended, and without the consent of the plaintiffs, the proprietors of the copyright above mentioned, fraudulently did reproduce, copy, print and publish such design or print, with the intent to deprive the plaintiffs of the benefits of their said copyright. Fourth. That on the day of proceedings in the nature of replevin were instituted by this plaintiff against the C. D. Publishing Co. and thereafter on the day of ^ due proceedings being had therefor, a writ of seizure issued out of this court and was thereafter duly returned by the marshal. Acting under the authority of said writ the marshal found in the possession of the C. D. Publishing Co. copies of eight-page prints and copies of four-page prints and copies of metal electrotype plates and seized the same and now has the same in his possession. The plaintiffs charge that each and every one of said prints and plates is an infringe- ment of plaintiffs' copyright herein mentioned, and that said : copies of eight-page prints and said copies of four- page prints and copies of electrotype plates were found in the possession of the C. D. Publishing Co. within the mean- ing o£ the statutes of the United States in such case made and provided. Fifth. That by reason of the premises and by force of the statutes of the United States an action has accrued to the plaintiffs, and the defendant has forfeited to them, as the pro- prietors of said copyright, the plates on which it has repro- duced said copyrighted article, together with all copies thereof 1070 COPYRIGHTS AND TRADE-MARKS. in the defendant's possession, and has forfeited to the plaintiffs and the United States one dollar for every sheet of the same found in its possession ; that the plaintiffs are the owners, and entitled by reason of the facts aforesaid to the possession of all of such plates and reproduced prints; that said plates and prints were made, and are now detained and held, by the de- fendant wrongfully, fraudulently and unlawfully, and that the plaintiffs are entitled thereto. Wherefore, the plaintiffs pray that they have judgment against the defendant for themselves and to the use of the United States in the sum of one dollar for each and every sheet of the prints, cuts or engravings reproduced, copies, printed and published, as herein set forth, found in the pos- session of the defendant, and which amount, to the sum of thousand dollars ($ ), and that said prints and plates so seized be delivered to the said plaintiffs and that the plain- tiffs also have judgment for the costs of this action. X. & X., Plaintiffs' Attorneys. (l) The District Court has jurisdiction of all suits for penalties. R- S., Sec 563, third. This petition should not be filed until the plates and prints in the actual possession of the defendant have been seized by writ issued upon proceeding in the nature of replevin. See BoUes vs. Outing Co., 175 U. S., 262; Falk vs. Curtis Pub. Co., 107 Fed. Rep., 126; Child vs. New York Times Co., no Fed. Rep. 527. The printed publications in the possession of the defendant and not those which have been sold are Counted in computing the penalty. See Thorn- ton vs. Schreiber, 124 U. S. 612 ; BoUes vs. Outing Co., 175 U. S. 262. No. 824. Declaration at Law in Cop3rright Case. The pleader will find sufficient guide in form of Declaration in Patent Case (No. 809), and Bill for Infringement of Copy- right (No. 814). COPYRIGHTS AND TRADE-MARKS. IO7I No. 825. Declaration at Law; Infringement of a Registered Trade-Mark (i). \Caption and commencement. See forms Nos. i to 4. J For that whereas the said plaintiff, for divers years before and at the time of the committing of the grievances herein- after next mentioned, did manufacture, vend, and sell, and continued to manufacture, vend, and sell, and still does con- tinue to manufacture, vend, and sell, for profits, in com- merce with Canada and other foreign countries (3), and throughout the United States, divers large numbers of a certain reaping-machine called the " Ohio," which said ma- chine the said plaintiff was then, and still is, used and ac- customed to sell, each machine bearing a representation of "Time" with a scythe, and the word "Ohio" in raised characters as a trade-mark therefor. And the said plaintiff says, that being then domiciled at , in the state of , and for the purpose of informing the public of his rights in the premises, and in order that his title might be made more clear and certain, caused said trade-mark to be registered according to the statute of the United States, as appears by the certificate of such reg- istration, to wit : Certificate No. , registered the day of , 1894, which certificate was dtily granted as aforesaid to remain in force for thirty years from that date, and was in full force when the grievances hereinafter com- plained of were committed, the essential features of which trade-mark consists in \state what, as a representation of "Time" with a scythe, and the word "Ohio" in raised characters], as by said original certificate of registration, or a duly certified copy thereof, here in court ready to be pro- duced, will more fully and at large appear, a copy of the statement, declaration of the registration of the trade-mark, and of said certificate being hereto attached, and made part hereof, and marked "A." 1072 COPYRIGHTS AND TRADE-MARKS. And the plaintiff further says that the said trade-mark re- ferred to in the said certificate is adapted to be used, and has been used by him in connection with reaping-machines for more than years, in commerce with Canada and other foreign countries, and very extensively throughout the United States, and that he has been and is entitled to the exclusive use of the said trade-mark as applied to reaping- machines. And the said plaintiff further says that before, and at the time of committing the grievances hereinafter next men- tioned, he had gained and acquired great fame and reputa- tion with the public on account of the excellent properties of the said reaping-machines so by him manufactured, vended, and sold, whereby the said plaintiff daily acquired and obtained great gain and profit. Yet the said defendant, well knowing the premises, but contriving to injure the said plaintiff in his said sale of reaping-machines, and to de- prive him of the great gains and profits which the said plaintiff would otherwise have acquired by manufacturing, vending, and selling the said machine, did, on the day of , 1894, and at divers other times before and after- wards, and before the commencement of this suit, unlaw- fully and wrongfully, injuriously, deceitfully, and fraudu- lently, against ^e will, and without the license or consent of the said plaintiff, manufacture and make, and cause to be manufactured and made, divers, to wit : Five hundred reap- ing machines, marked in imitation of, and bearing an almost exact copy of, the said plaintiff's trade-mark, to wit, [the said representation of "Time" with a scythe, and the word "Ohio" in raised characters,] as hereinbefore set forth, in order to denote that the reaping-machine of the said de- fendant was the genuine reaping-machine manufactured, vended, and sold by the said plaintiff; and did knowingly, wrongfully, injuriously, deceitfully, and fraudulently vend and sell, for his own lucre and gain, the last-mentioned reaping-machines; by reason of which said premises the COPYRIGHTS AND TRADE-MARKS. IO73 said plaintiff has been greatly injured, and deprived of great profit and advantage, in being hindered and prevented by the said defendant from selling, vending, and disposing of divers large numbers, to wit, five hundred of the said reap- ing-machines, which the said plaintiff would otherwise have sold, vended, and disposed of, and has thereby sustained actual damage to the amount of ten thousand dollars. Yet the said defendant, though requested, has never paid the same, or any part thereof, to the said plaintiff; but has refused, and yet refuses so to do. Wherefore the plaintiff prays judgment in the said sum of ten thousand dollars, and for costs herein. (i) See note to No. 815. (2) It must appear that the trade-mark was used on goods in com- merce with foreign countries, or the Indian tribes, in order to bring the case within the statute. Act of March 3, 1881, 21 St. at L., 502. No. 826. Appearance. See Nos. 70, 71, and 72. No. 827. Security for Costs. For form of Motion for Additional Security for Costs, see No. 442, and for form of Cost Bond, see No. 58. Consult Nos. 462. See No. 440. No. 828. Amendment. No. 829. Replication. I074 COPYRIGllTS AND TRADE-MARKS. No. 830. Limiting Time within which to take Evidence. For forms of Motion to Assign Time and Order on the same, see Nos. 491 and 492. No. 831. Depositions. For forms for Stipulation Appointing Notary Public and Examiner, Notice for Taking Depositions, Commencement for Depositions, Certificate, see Nos. to , and for form for Transmission, see No. No. 832. Depositions De Bene Esse. Consult Nos. 181 to 184. No. 833. Costs. For form, see Nos. 134 and 135. No. 834. Stipulation to Submit Cause on Brief. For form, see No. 501. No. 835. Master. For forms of Decree Referring Cause to Master, Oath of Master, Summons by Master, Master's Report, Exceptions to Master's Report, see forms under titles " Equity," " Receiv- ers," and " Patents." COPYRIGHTS AND TRADE-MARKS. IO75 No. 836. Preliminary Injunction. Consult forms under title " Patents." No. 837. Contempt Proceedings. See forms under title " Patents." No. 838. Decree Dismissing BilL See form Nos. 511 to 513. No. 839. Final Decree (Copyright Case) (i). ICaption.^ This cause came on to be heard this day of , upon the bill, and answer, and the master's report, and was argued by counsel; on consideration whereof, it is ordered, adjudged, and decreed by the court that the master's report be, and the same hereby is approved and confirmed; and thereupon it is further ordered, adjudged, and decreed by the court that the said defendants be, and they hereby are severally and perpetually restrained and enjoined from printing, selling, publishing, or exposing to sale, or causing, or being in any way concerned in the printing, publishing, selling, or exposing to sale of any copy or copies of the whole or any part of the [three hundred and fifty] pages, copied as reported by the master, in said [state name of hook or publication], mentioned in the bill and an- swer, published by the defendants from [said hook or puh- lication], mentioned in the bill and answer, published by the plaintiffs, the plaintiffs waiving the account prayed for in the bill, the court does not order such account. 1076 COPYRIGHTS AND TRADE-MARKS. (i) Folsom VS. Marsh, 2 Story C. C, 100. Consult also forms of de- crees under titles " Patents " and " Equity." No. 840. Final Decree (Trade-Mark Case) (i). [Caption.^ This cause came on to be heard this day of upon the bill, answer, and proofs in the cause, and was ar- gued by counsel on behalf of the plaintiffs, no counsel appearing for the defendants (the counsel who had previously appeared for them having voluntarily, withdrawn from the cause). On consideration whereof, it is ordered, adjudged, and decreed by the court that a perpetual injunction be granted in the premises according to the prayer of the bill, and that the plaintiffs do recover costs against the defendants, to be taxed by the clerk under the direction of the court. (i) Taylor vs. Carpenter, 3 Story, C. C, 458. Consult also forms of decrees under titles " Patents " and " Equity." No. 841. Final Decree — Trade- Mark Case (Another Form) (i). This cause came on to be heard this day of — upon the pleadings and proofs in the case, and was argued by counsel on behalf of the defendant as well as of the plaintiff, and due consideration being had thereof, it is ordered, ad- judged, and decreed, and this court by virtue of the power therein vested, does order, adjudge, and decree that the defendant, CD., his iattorneys, servants, and agents be, and they are hereby perpetually enjoined and restrained from making, devising, or causing to be made or devised, purchas- ing or procuring any marks, stamps, labels, or tickets de- scribed in the bill of complaint in this action as in use by the defendant upon tickings possessed and sold by him, and COPYRIGHTS AND TRADE-MARKS. IO77 that they be in like manner enjoined and restrained from using the said niarks, stamps, labels, or tickets upon any- ticking whatever in their possession, or under their control, or offered or kept for sale by them, or on their account or for their benefit. And that they be in like manner enjoined arid restrained from selling, keeping, or offering for sale, any tickings bearing thereon any such stamp, mark, label, or ticket. And that they be in like manner enjoined and re- strained from making, devising, or causing to be made or devised, purchasing or procuring, or in any way or manner using for or upon any tickings whatever, any stamp, mark, label, or ticket similar to the said stamp, mark, label, or ticket of the plaintiff, or having thereon the letters A. C. A., or being in any manner an imitation, whether in whole or in part, of the said stamp, mark, label, or ticket of the plaintiff. And that they be in like manner enjoined and restrained from selling, keeping, or offering for sale any tickings as the real A. C. A. tickings which are not so, and for that purpose, from resorting to any device, deceit, fraud, or misrepresenta- tion whatever, by the use of any stamp, mark, label, or ticket, or otherwise. And that they be in like manner en- joined and restrained from, in any manner, using the letters A. C. A. on goods, or on the wrappers or covering thereof. (i) Taken from the record in Amoskeag Mfg. Co. vs. Spear, 2 Sand. S. C, 599. No. 842. Writ of Injunction. See Nos. 699 and 800. CRIMINAL PROCEEDINGS. BEFORE U. S. COMMISSIONERS.* No. 483. Affidavit of Complaint (i). The United States of America, District of , City of , ss. Before me, J. N., a United States commissioner for the district of , personally appeared this day E. P., who being first duly sworn, deposes and says that on the day of , 1894, at , in the district aforesaid, L. H., in violation of section , U. S. Revised Statutes, did unlawfully, knowingly, and willfully, [or, feloniously], [here state the facts necessary to constitute an offense against the laws of the United States, as, for example, "misapplied the funds, moneys, and credits of a banking association, to wit, the National Bank, an association duly incorporated under the banking laws of the United States, in this, to wit, that the said L. H., president of the said association, did, then and there, without the authority of the directors of said association, issue certain certificates of deposit, to wit, one certificate of deposit. No. , for the sum of $ , is- sued to himself, with intent then and there to injure and defraud the said association"], contrary to the form of the statute in such case made and provided. E. P. Sworn to before me and subscribed to in my presence, this day of , 1894. J. N., [SealJ] United States Commissioner for the District of . (i) A comrmssioner is not authorized, to issue a warrant except upon a complaint on oath- U. S. vs. Tureaud, 20 Fed. Rep. 621. United States conmiissioners are appointed under sec. 19 of the Act of 1078 BEFORE U. S, COMMISSIONERS. IO79 May 28, 1896, 29 Stat, at L. 140. They have the same powers and duties that commissioners of the Circuit Courts formerly had. The duties of these officers are prescribed by law and are in general summarized in U. S. vs. AUred, 155 U. S. 594, to wit: " To issue warrants for offenses against the United States ; to cause the offenders to be arrested and imprisoned, or bailed, for trial, and to order the removal of offenders to other districts (R. S. sec 1014;) to hold to se- curity of the peace and for good behavior (sec. 727;) to carry into effect the award or arbitration, or decree of any consul of any foreign nation; to Slit as judge or arbitrator in such differences as may arise between the captains and crews of any vessels belonging to the nations whose inter- ests are committed to his charge; and to enforce obedience by imprison- ment until such award, arbitration, or decree is complied with (sec. 728;) to take bail and affidavits in civil causes (sec. 94s;) to discharge poor con- victs imprisoned for non-payment of fines (sec. 1042;) to take oaths and acknowledgements (sec. 1778;) to institute prosecutions under the laws re- lating to crimes against the elective franchise, and civil rights of citizens, and to appoint persons to execute warrants thereunder (sees. 1982 to 1985 ;) to issue search warrants authorizing internal revenue officers to search premises, where a fraud upon the revenue has heen committed, (sec. 3462) ; to issue warrants for deserting foreign seamen, (sec. 5280;) to summon masters of vessels to .appear before him and show cause why process should not issue against such vessel (sec. 4S46;) and to issue warrants for and examine persons charged with being fugitives from justice, (sees. 5270 and 5271 ;) and to administer oaths in bankruptcy proceedings (Bankruptcy Act of 189B, sec. 20, .30 Stat, at L. 544.) No. 844. Warrant of Arrest. The President of the United States of America to the Mar- shal of the United States for the District of . and his Deputies, or any or either of them: Whereas, complaint on oath and in writing has been made before me, a United States commissioner for the dis- trict of — . — ', charging that L. H. did, on or about the day of -^ — , in the year of our Lord i8 — , at , in said district, unlawfully and willfully, etc. [according to the facts set forth in the aMdavif] contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States; io8o CRIMINAL PROCEEDINGS. Now, therefore, you are hereby commanded in the name of the President of the United States to apprehend the said L. H. and bring his body forthwith before me, or any other commissioner having jurisdiction of the case, to answer the said complaint and to be dealt with according to law for the said ofifense. Given under my hand and seal this day of , in the year of our Lord i8 — . J. N., l^Seal.'] United States Commissioner Approved. for the District of . J. H., U. S. Attorney. No. 845. Temporary Recognizance. The United States of America, District of , City of , ss. Be it remembered that on this day of , 1894, before me, J. N., a United States commissioner for the said district of , personally came L. H. as principal, and B. H., E. F., and G. H. as sureties, and jointly and severally acknowledged themselves to owe the United States of America the sum of dollars, to be levied on their goods and chat- tels, lands and tenements, if default be made in the condition following, to wit : The condition of this recognizance is such, that if the said L. H. shall personally appear before me, J. N., a com- missioner as aforesaid, at my office, No. street, in the city of , on the day of , to answer the charge of {name crime charged'], and then and there abide the order of said commissioner, and not depart from said district, then this recognizance to be void; otherwise to re- main in full force and virtue. B. H. E. F. G. H. BEFORE U. S. COMMISSIONERS. IO81 Taken and acknowledged before me on the day above written. J. N., ISeal.^ United States Commissioner for the District of . No. 846. Justification of Surety to Bond. The United States of America, District of , City of , ss. B. H., of No. street, in the city of , in said dis- trict, and E. F., of No. street, in the city of , in said district, and G. H., of No. street, in the city of , in said district, sureties on the foregoing recognizance, make oath, and say each for himself, that he is a free-holder in the city of ; that he is worth the sum of $ :, over and above his just debts and liabilities, in property subject to execution and sale, and that his property consists of [here state the property of each surety separately^. B. H. E. F. G. H. Sworn to before me this day of , 1894. J. N., [Seal.l United States Commissioner for the District of . No. 847. Release of Sureties (i). [In case the sureties wish to surrender their principal the following indorsement should be made on the bond given above. 'I The defendant, L. H., surrendered on this bond by his sureties, and accepted by the United States attorney, and the sureties are hereby released this day of , 1894. J. N., [Seal.l United States Commissioner for the District of . (i) See R. S. sec. 1018; Desty's Fed. Proc.sec. SSI- I082 CRIMINAL PROCEEDINGS. No. 848. Final Recognizance for Appearance Before Circuit or District Court. The United States of America, District of , City of , ss. Be it remembered that on this day of , 1894, before me J. N., a United States commissioner for the said district of personally came L. H., as principal, and B. H., E. F., and G. H., as sureties, and jointly and severally, acknowledged themselves to owe the United States of America the sum of $ to be levied on their goods and chattels, land and tenements, if default be made in the condition following, to wit: The condition of this recognizance is such that if the said L. H. shall personally appear before the Circuit Court of the United States for the district of , held in the city of , in the district aforesaid on the first day of the next regular term, then and there to answer the charge of [here set forth oifense charged in the aMdavif], and then and there abide the order of the said court and not depart from said district without leave, then this recognizance to be void, otherwise to remain in full force and virtue. L. H. B. H. E. F. G. H. Taken and acknowledged before me on the day above writ- ten. . J. N., [Seal.'] United States Commissioner for tbe District of . [For justiUcaiion of sureties, see No. 846.] BEFORE U. S. COMMISSIONERS, IO83 No. 849. Temporary Mittimus. The United States of America, District of , City of , ss. The President of the United States of America to the keeper of the jail in County, of the State of , Greet- ing: Whereas L. H. has been arrested upon the oath of E. P., for having on or about the day of , 1894, at , in the district aforesaid, unlav/iMiIy [^here set forth the ofFense charged in the aMdavit^, and has not been examined by me, J. N., a United States commissioner for the district of , and has been required to give bail in the sum of dollars for his appearance before me on the day of , at ten o'clock a. m., with which requisition he has failed to comply; this is therefore to command you in the name and by the authority aforesaid to receive the said L. H., prisoner of the United States of America in the jail of said county, there to remain until he be discharged by due course of law. Given under my hand and seal in the district aforesaid on the day of , 1894. J. N., ISeal.'l United States Commissioner for the District of . No. 850. Final Mittimus. The United States of America, District of , City of , ss. The President of the United States of America to the Mar- shal of said District, and to the keeper of the jail in County, of the State of , Greeting: Whereas L. H. has been arrested on the oath of E. P. for having on or about the day of , at , in the dis- trict aforesaid, unlawfully, etc., [here set forth the offense charged in the afftdavif] and has been examined by me, J. 1084 CRIMINAL PROCEEDINGS. N., a United States commissioner for the said district of , upon the aforesaid charge, and it appearing to me that said offense has been committed, and probable cause shown to believe said L. H. committed said offense, and said L. H. has been required to give bail in the sum of dollars for his appearance at the first day of the next regular term of the court for the district of , at , which requisition he has failed to comply with. This is therefore to command you, in the name and by the authority aforesaid, to commit the said L. H. to the cus- tody of the jailer of said county, and you, the keeper of said jail in said county, to receive the said L. H., prisoner of the United States of America, in the jail of said county, there to remain until he be discharged by due course of law. Given under my hand and seal in the said district aforesaid this day of , 1894. J. N., [S"eo/.] United States Commissioner for the District of . No. 851. Return by the Marshal on the above Mittimus. Received this mittimus, with the within-named prisoner, on the day of , 1894, and on the same day I com- mitted the said prisoner to the custody of the keeper within- named, with whom I left at the same time a certified copy of this mittimus. H. C, United States Marshal Dated . for the District of . No. 852. Recognizance of Witnesses. The United States of America, District of , City of , ss. Be it remembered that on this day of , 1894, BEFORE U. S. COMMISSIONERS. I085 before me, J. N., a United States Commissioner for the District of , personally came [set forth names of wit- nesses'], and acknowledged themselves to own and be in- debted to the United States of America in the full and just sum of dollars, to be levied on ther goods and chattels, lands and tenements, if default should be made in the condi- tions following: The conditions in this recognizance are such that if the above-named [here insert names of witnesses'], shall per- sonally appear before the District [or, Circuit] Court of the United States for the District of , on the first day of its next term thereof, to be begun and held at , in the said district, then and there to testify in a cause wherein the United States are plaintiffs, and L. H. is defendant, on the behalf of the United States, and shall not at any time be ab- sent from said court without leave, then this recognizance to be void ; otherwise to remain in full force and virtue. In testimony whereof the obligors have hereunto set their hands the day and year above written. Signature of witnesses: . [^Seal.] . [Seal.] . [Seal.] Subscribed in my presence and acknowledged before me this day of , 1894. J. N., [Seal.] United States Commissioner for the District of . No. 853. Subpoena for Witnesses (i). The United States of America, District of , City of The President of the United States of America to the Mar- shal of the District of : You are hereby commanded to summon J. K., L. M., arid W. C, if they are to be found in your district, to be and ap- I086 CRIMINAL PROCEEDINGS. pear before me, J. N., a United States Commissioner for the District of aforesaid, at my office. No. , street, in the city of , state of , on the day of , 1894, at ten o'clock a. m., to give testimony and the truth to say in a cause pending before me, wherein the United States are plaintiffs, and L. H. defendant, in behalf of the United States ; hereof fail not, under penalty of the law, and have you then and there this writ. Given under my hand and seal this day of , 1894. VSeaLI J. N., United States Commissioner for the District of . (i) R. S. sec. 863. No. 854. Affidavit of Attendance. The United States of America, District of , ss. Before me, J. N., a United States Commissioner for the District of , personally came M. H., who makes oath and says that he has attended the examination in the cause of the United States against L. H., charged with [mur- der, embezzling money, or as it may be], as witness in behalf of the United States, days; that he resides miles trom the place where said examination was held, for which attendance and mileage while traveling to and returning from said examination he claims the compensation allowed by law. M. H. Sworn to and subscribed to before me this day of , 1894. J. N., [Seal.'} United States Commissioner. BEFORE U. S. COMMISSIONERS. I087 No. 855. Order to Pay Witness. The United States vs. ■ [The charge against the defendant.'] L. H. J This is to certify that the several persons hereinafter named have attended before me as witnesses in behalf of the United States in the above-entitled cause, and that they are entitled to receive from the United States the sum set opposite their re- spective names, for attendance and mileage, which said sum the marshal is hereby ordered to pay the said witnesses. [Here should follow the names of the witnesses who attend- ed, number of miles traveled, amount due, and should be signed below by the commissioner zvith his official seal and title.] No. 856. Transcript from Commissioner. Before J. N., United States J. H., Commissioner for the Attorney for the United District of . States, The United States vs. L. H. Attorney for the Defendant. J. W., Two affidavits and complaints of E. P. taken and filed, charging that on or about the day of , 1894, at , in the District of ,the said L. H., defendant herein, did violate sections of the United States Revised Stat- utes, contrary to the form of the statute, etc. June 21, 18 — , issued warrant for arrest of defendant to United States marshal. June 22, 18 — , issued three subpoenas for witnesses to United States marshal. June 21, 18 — , warrant returned, executed by arrest of de- I088 CRIMINAL PROCEEDINGS. fendant at , in the district of , on the 21st day of June, 18 — . June 21, 18 — , defendant present in court, waived exam- ination ; bail fixed at $ . June 22, 18 — , defendant present in court; arrested upon second warrant. [Continue with docket entries of all proceedings before the commissioner, after which follows the transcript of the record before said commissioner, and conclude as follows:^ The United States of America, District of . I, J. N., a United States Commissioner in and for the said district, do hereby certify that the foregoing writing is a true transcript of the entries on my docket in the cause thereir. named, and the process, writs, and papers in said cause are hereby returned unto the Circuit Court of the United States for the District of in pursuance of law. In witness whereof I hereunto set my hand and seal at my office, in , in said district, this day of , 1894. ISeal.^ J. N., United States Commissioner for the District of . No. 857. Affidavit for Search Warrant (Internal Revenue). The United States of America, District of , ss. Be it remembered, that on this day, before me, J. N. United States Commissioner for the District of — came A. B., who being by me duly sworn, deposes and says that he has good reason to believe, and does verily believe, that a fraud upon the revenue of the United States has been and is being committed upon and by use of a certain [state the facts as may be'], being the premises of G. W., and being sit- BEFORE U. S. COMMISSIONERS. IO89 uated in the city of , in the county of , and state of , and within the district above named. A. B. Sworn to before me, and subscribed to, in my presence this day of , 1894. J. N., [SeaLI United States Commissioner as aforesaid. No. 858. Search Warrant (Internal Revenue). The United States of America, District of , ss. To S. W., Internal Revenue Officer of the United States for District of , and to his Deputies, or any of them: Whereas complaint on oath and in writing, has this day been made before me, J. N., a United States Commissioner in and for the said district, by A. B., alleging that he has reason to believe that a fraud upon the revenue of the United States is being committed, upon and by use of a certain {state facts as in affidavit'], being the premises of G. W., and being sit- uated in the city of , in the county of , and state of , and within the district above named. You are therefore hereby commanded, in the name of the President of the United States, to enter said premises with the necessary and proper assistance, and there diligently to investigate and search into and concerning said fraud, and to report and act concerning the same as required by law. Given under my hand, on this day of , 1894. {Seal.'] United States Commissioner as aforesaid. logo CRIMINAL PROCEEDINGS. No. 859. Affidavit for Search Warrant under Act of July lo, 1891. The United States of America, District of , ss. Be it remembered, that on this day, before me, J. N., a United States Commissioner for the District of , came A. B., who, being by me duly sworn, deposes and says that he has good reason to beUeve, and does verily believe, that the manufacture of counterfeit money, and the concealment of counterfeit money, and the manufacture and concealment of counterfeit obligations and coins of the United States \_or any foreign government, naming it], and the manufacture and concealment of dies, hubs, molds, plates, and other things fitted and intended to be used for the manufacture of counterfeit money, coins, and obligations of the United States [or any foreign government, naming it; or, of a bank doing business under the authority of the United States, or of any state or ter- ritory, naming it; or, of a bank doing business under the au- thority of a foreign government; or, of a political division of a foreign government in ], is being carried on and practiced upon the premises of G. W., and being situated in the city of , in the county of , and state of , and within the district above named. A. B. Sworn to before me, and subscribed in my presence, this day of , 1894. J. N., [^Seal.'] United States Commissioner as aforesaid. No. 860. Search Warrant under Act of July 10, 1891. The United States of America, District of , ss. To the Marshal of the United States for the District of , or to [naming the special deputy] : Whereas complaint on oath, and in writing, has this day BEFORE U. S. COMMISSIONERS. IO9I been made before me, J. N., a United States Commissioner in and for the said district, by A. B., alleging that he has reason to believe and does believe that [state the facts as in afUdavW], being the premises of G. W., and being situated in the city of , in the county of , and state of , and within the district above named. You are therefore hereby commanded, in the name of the President of the United States, to enter said premises with the necessary assistance, in the daytime only, and there search for any such counterfeit money, coins, dies, hubs, molds, plates, and other things, and of any such obligations, and if any such be found, to seize and secure the same, and to make re- turn thereof to the proper authority. Given under my hand and seal this day of , 1894. J. N., {^SealJ] United States Commissioner as aforesaid. No. 861. Seaman's Wages. Proceedings Before Commissioner. For forms, see under title "Admiralty." 1092 CRIMINAL PROCEEDINGS. POOR CONVICT. No. 862. Application for Discharge (i). The United States of America, District of , ss. The. United States, 1. ,.^. . .., . I Apphcation for discharge from im- , ' J prisonment under R. S., sec. 1042. To J. N., a United States Commissioner for the District of : Your petitioner represents and states that he was sen- tenced to pay a fine of $ and costs by the District [or. Circuit] Court of the United States for the district of ; that he has been imprisoned for thirty days in the county jail, in the state of , for non-payment of such fine and costs, and that he is unable to pay the same; wherefore he hereby makes application in writing for discharge from imprisonment in the county jail, under the .provisions of section 1042 of the Revised Statutes of the United States. L. H., Dated this day of , 1894. AppUcant. (i) See Desty's Fed. Proc, sec. 578. R. S. sees. 1042, 5296. No. 863. Mandate to Jailer to Produce Prisoner. The United States of America, District of . The United States of America to the Jailer of County, Greeting : Whereas L. H. has this day made an application in writing before J. N., a United States commissioner for the district POOR CONVICT, 1093 aforesaid, for a discharge from imprisonment in the county jail, in the state of , under the provisions of sec- tion 1042 of the Revised Statutes of the United States. This is therefore to command you to produce the body of said L. H. forthwith before me, J. N., a United States commis- sioner for the district of , at No. street, in the city of , in said district, and the marshal of the district aforesaid is directed to execute this mandate. In witness whereof I hereunto set my hzmd and seal this day of , 1894. J. N., [Seal.'] United States Commissioner for the District of . No. 864. Oath of Poor Convict (i). The United States of America, District of . The United States, 1 * i- .• r i- 1 r I Application for discharge from im- ^ ' f prisonment under R. S., Sec. 1042. I, L. H., do solemnly swear that I have not any property, real or personal, to the amount of $20.00, except such as is by law exempt from being taken on civil precept for debt by the laws of [^state where oath is administered'^ ; and that I have no property in any way conveyed or concealed, or in any way disposed of, for my future use or benefit, so help me God. L. H. Subscribed and sworn to before me this day of , 1894. J. N., [Seal.'] United States Commissioner for the District of . (i) This form of oath is prescribed by statute. See R. S., sec. 1042; Desty's Fed. Proc, sec. 578. 1094 CRIMINAL PROCEEDINGS. No. 865. Certificate of Discharge. The United States of America, District of . The United States, 1 * ,- ,• j- .• i j- Apphcation for discharge from im- ■ I prisonment under R. S., Sec. 1042. L.. n. It appearing to me, J. N., a United States commission- er for the district of , that L. H., the above-named defendant, has been imprisoned in the county jail for the period of 30 days, solely for the non-payment of a fine and costs adjudged against him by the District [or. Circuit] Court of the United States for the district of , and that he is unable to pay the same, and has complied with all the re- quirements of law, it is therefore ordered that said L. H. be discharged from further imprisonment, and go hence with- out day. J. N., \_Seal.'\ United States Commissioner for the District of . Dated this day of , 1894. EXTRADITION. IO95 EXTRADITION. No. 866. Complaint for Warrant (i). The United States, of America, District of , ss. On this day of , personally appeared before me, J. N., a United States commissioner for the district of , and duly authorized by the said court to issue warrants for the extradition of fugitives from justice of foreign gov- ernments, A. B., of , who makes solemn oath, and says that L. H. did, on the day of , at r, within the jurisdiction and government of , commit the crime ■of murder [or as-the case may be"], in that he did, on the said day of , at the aforesaid, [here set forth facts ■suMcient to constitute an offense under the treaty^, against the peace and government of said ; that the said L. H. is now a fugitive from the justice of the said government of , and that he did, on or about the day of , flee into and is now found within the limits of this judicial dis- trict. A. B. Subscribed and sworn to before me on the day and year first mentioned above, at my office, No. street, in the city of , in the district aforesaid. J. N., [Seal.] United States Commissioner for the District of . (l) See Desty's Fed. Proc, sec. 585, et seq.; R. S. sec. 5270, et seq. If the affidavit is made by the representative of the foreign government this fact should appear. Ex parte Lane, 6 Fed. Rep. 34; in re Herris, 33 Fed. Rep. 583. ,J0g6 CRIMINAL PROCEEDINGS. No. 867. Extradition Warrant to Arrest Fugitive (i). The United States of America, District of , ss. The President of the United States of America to the Mar- shal of the District of , Greeting: Whereas complaint on oath and in writing has this day- been made by A. B. before me, J. N., a United States com- missioner for the district of , duly authorized by the said court to issue warrants for the extradition of fugitives from justice of foreign governments, and particularly for L. H., a fugitive from justice from the Republic of , wherein it is alleged that L. H. did on the day of , 1894, at , within the jurisdiction and government of , commit the crime of murder [or as the case may be'\, in that he did then and there [set forth the words of the complaint with reference to the facts constituting the offense^, against the peace and government of the said government of , and that the said L. H. is now a fugitive from justice of said , and is now within the limits of this judicial district; and whereas it appears to me that a treaty or convention exists between the government of the United States and the gov- ernment of for the extradition of fugitives from justice, and that the crime of murder, with which the said L. H. is charged, is embraced in the terms of said treaty or terms of extradition. These are therefore to command you forthwith to appre- hend the said L. H., and to bring him before me, to be dealt with according to law and the provisions of said treaty of ex- tradition. Given under my hand and seal this day of , 1894, at my office, No. street, in the city of , in the district aforesaid. J. N., ISeal.} United States Commissioner for the District of - — -. EXTRADITION. IO97 The first step in extraditing a fugitive from justice of a foreign country under a treaty with the United States is to file a complaint under oath with a United States commissioner, who has been previously auhorized by a court, under R. S. sec. 5270, to issue such warrants and to hold a prelim- inary examination. The commissioner then issues a warrant for arrest of the fugitive. The fugitive is arrested by the marshal of the district in which the warrant issues and the fugitive is brought before the commis- sioner for a preliminary hearing. Evidence, either oral or written, is intro- duced on behalf of and against the fugitive. If the evidence is written it must be authenticated as provided in R. S. sec. 5271. Arguments of coun- sel are heard and the commissioner, if he finds the evidence sufficient to identify the prisoner and show probable cause, certifies his findings to the Secretary of State of the United States together with a record of the evidence and proceedings before him. The State Department thereupon issues a warrant of extradition which authorizes the counsel or other agent of the foreign government to take the prisoner to the government requesting his extradition. See in re Heinrich Herrle, 47 O. W. L. Bui. 304. If the complaint is upon more than one charge the commissioner should specify in his certificate to the secretary of state upon which charges he finds probable cause. The commissioner is not ordinarily authorized to admit fugitive from justice to bail in an international extradition proceeding. In re. Carrier, 57 Fed. Rep. 578. No. 868. Final Commitment (i). The United States of America, District of , ss. In the matter of the extradition of L. H. This cause coming on to be heard this day of , 1894, before me, J. N., a United States commissioner for the district of , on requisition presented by {here state the name and ofUcidl character, as F. L., consul at the port of Cincinnati for the Republic of France'], that the said L. H. be committed for the purpose of being delivered up as a fugi- tive from justice pursuant to the provisions of a treaty dated the day of , and made between the government of the United States and that of France, and a hearing being 1098 CRIMINAL PROCEEDINGS, had, and evidence produced, I find and adjudge that the evidence produced against the said L, H. is sufficient in law to justify his commitment on the charge of \_here set forth the crime charged^ had the crime been comiriitted within the United States. I therefore order that the said L. H. be com- mitted pursuant to the provisions of the treaty aforesaid, to abide the order of the President of the United States in the premises. Given under my hand and seal at the city of , this day of , 1894. . J. N., [Seal.] United States Commissioner for the District of . (l) See note to No. 460. No. 869. Certificate of Extradition Proceedings (i). The United States of America, In the matter of the Ex- District of , ss. tradition of L. H. I, J. N., a United States commissioner for the -; district of , being duly authorized by the said court to issue the warrant for the arrest of L. H. and hear evidence in respect to the charges against L. H. and proceed according to law in the matter of the extradition of said L. H., a fugitive from justice from the republic of , a foreign government, under a treaty existing between the United States and said republic of , do hereby certify that a complaint was duly made on oath and in writing before me by A. B., charging L. H. with having committed the crime of murder [or as the case may be"], within the jurisdiction and government of — • — , and that, being a fugitive from justice of said country, I thereupon issued my warrant for the arrest of the said L. H., directed to the marshal of the United States for the said district, and by virtue thereof the said L. H. was by the mar- shal arrested and brought before me for examination and hearing upon said charge, and that said examination and EXTRADITION. IO99 hearing was held on the day of — — , 1894, at my office at No. street, in the city of , and that R. X., Esq., was present as counsel for the \_foreign governmenf], and R. Y., Esq., was present as counsel for the prisoner, and that the evidence adduced before me I consider sufficient evidence to sustain the charge under the law and the provisions of the treaty of extradition between the government of the United States and the government of [foreign power'], and that I have accordingly, by my warrant under my hand and official seal, this day of , 1894, committed him to the r county jail in the city of , to await the order of the Presi- dent of the United States in the premises. I further certify that the following is a true copy of the testimony taken before me on said hearing and examination \_here set forth the testimony in full]. Witness my hand and seal this day of , 1894. J. N., [Seal.] United States Commissioner for the District of . (i) See note to No. 460. No. 870. Complaint for Warrant of Arrest to Remove under R. S., Sec. 1 014. United States of America, District of , ss. This day of personally appeared before me, J. N., a United States Commissioner for the district of , who makes solemn oath and says that L. H. did on the day of , at , within the state of , commit the crime of [state the offense according to the case] in that he did on the said day of , at aforesaid [here set forth facts sufficient to constitute ah offense under the laws of the United States], against the peace and government of the said United States ; that the said L. H. is now a fugitive from the IIOO CRIMINAL PROCEEDINGS. justice and that he did on or about the day of , flee into and is now found within the limits of this judicial district. A. B. Subscribed and sworn to before me on the day and year above mentioned at my office, No. , street, in the city of , in the district aforesaid. J. N., United States Commissioner for the District of . No. 871. Extradition Warrant to Arrest a Fugitive for Removal un- der R. S., Sec. 1014 (i). The United States of America, District of , ss. The President of the United States of America to the Marshal of the District of , Greeting : Whereas, complaint on oath and in writing- has this day been made by A. B. before me, J. N., a United States Com^mis- sioner for the District of , where it is alleged that L. H. did on the day of , A. D. , at , within the state of , in the district of , commit the crime of [here state the crime complained of], in that he did then and there [set forth the words of the complaint with ref- erence to the facts constituting the offense'] against the peace and government of the United States, for which offense the said L. H. has been indicted by the grand jury, duly empan- eled, sworn and charged to inquire in and for the dis- trict of , and that said L. H. is now a fugitive from the justice of the said district, and is now within the limits of this judicial district; and whereas, it appears to me that the said L. H. should be brought before me to determine if he should be removed to the said district for trial pursuant to the provisions of Section 1014 of the Revised Statutes of the United States. These are therefore to command you forthwith to appre- hend the said L. H. and bring him before me to be dealt with according to law. EXTRADITION. HOI Given under my hand and seal this day of , A. D. -, at my office, No. , street, in the city of in the district aforesaid. J. N., United States Commissioner for the District of ■ (i) When a warrant is issued and the accused arrested he is brought before a commissioner. He thereupon pleads: If his plea is guilty he should be held to bail or committed. If his plea is not guilty he may waive examination or demand a hearing. Unless he waives examination he is en- titled to a speedy hearing. At the examination before a commissioner evidence may be introduced for and against the accused and counsel may be heard. The magistrate must determine the identity of the prisoner and his probable guilt. If he is satisfied as to these two questions it is his duty to admit the accused to bail for trial before such court as by law is cognizant of the offense. If the accused fails to tender sufficient bail the magistrate may then commit him to the custody of the marshal to await a warrant for hisi removal. If on the other hand there is no probable cause of his guilt, or his identity is not established, the accused is entitled to be discharged by the magistrate. When the accused is discharged or admitted to bail by the magistrate, ex- tradition proceedings are at an end. When the accused has been committed to the custody of the marshal, the United States attorney appears before the judge, usually attended by the marshal with the prisoner, and makes an application for an order or a war- rant of removal. This should be done as soon as possible after the com- mitment by the commissioner. The order or warrant of removal is not is- sued as a matter of course. It is the duty of the judge to determine ju- dicially whether the prisoner should be taken to another district for trial, or whether he is entitled to his freedom. The practice in the several dis- tricts is not uniform as to how far the judge will go in his inquiry before he takes action in the shape of an order either granting or refusing the transfer of the prisoner. He must in any case be satisfied with the proof of the identity of the prisoner. And if no opposition is made he may rely upon the finding of the commissioner in respect to the probable cause of guilt. But he is npt obliged to do so. The judge may allow an exami- nation de novo before him upon the facts to determine this question. In re Dana, 68 Fed. Rep. 886 in re Wolf, 27 Fed. Rep. 606. At such a hearing it seems to be not only the right but the duty of the judge to look into the indictment and probably into an order of court so far as to be satisfied that an offense is charged, which may be lawfully tried in the forum to which it is claimed the accused should be removed. Horner vs. U. S., 44 Fed. Rep. 677, (143 U. S. 214;) Callan vs. Wilson, 127 U. S. 540; in re Palliser, 136 U. S. 261 ; in re Terrell, 31 Fed. Rep. 213 ; in re Doig, 4 Fed. Rep. 193; U. S. vs. Brawner, 7 Fed. Rep. 86 ; U. S. vs. Rogers, 23 Fed. Rep. 658. For form of bench warrant to remove prisoner see form No. 872 and note. 1 102 CRIMINAL PROCEEDINGS. No. 872. Bench Warrant for Removal (R.S., Sec. 1014). (i). The United States of America, . District of , ss. The President of the United States of America to the Mar- shal of the United States for the District of ^ and to his Deputies, or any or either of them : Whereas L. H. has been brought before me upon a com- mitment made by a United States commissioner in this dis- trict for the purpose of obtaining a warrant for the removal of the said L. Hr to the — '■ — district qf , in which dis- trict the oflFense for which said prisoner has been committed is to be tried, a copy of which commitment is hereto annexed. And whereas, the United States district attorney for the district of has made application to me under the provisions of Section 1014 of the Revised Statutes of the United States for a warrant for the removal of said prisoner to the said district of , and an examination of the matter having been made by me, now, therefore, you are hereby commanded to remove said prisoner, now in your custody, forthwith to the said district of , and there deliver him to the United States marshal for the dis- trict of , or some other proper officer authorized to re- ceive the said prisoner, in order that he may be dealt with according to law. Given under my hand and seal of the district court of the United States for the district of , • at the city of , this day day of — — , 189 — . G. W., District Judge. Attest : B. R., Clerk. ) (l) When it is sought to remove aprisoner tinder R. S. sec. ioi4andthe prisoner has been brought before the judge and he is satisfied with the identity of the prisoner and of the probable cause of his guilt he issues an order or warrant of removal. Horner vs. U. S., 143 U. S. 207 ; in re Burk- EXTRADITION. I IO3 hardt, 33 Fed. Rep. 25 ; U. S. vs. White, 25 Fed. Rep. 716. This warrant should be directed to the marshal of the district within which the prisoner is confined and extradition proceedings had. Only one writ or warrant is necessary to remove a prisoner from one district to another, R. S. sec. 1029. The marshal of the district where the prisoner is confined may deputize the marshal of the district in which the trial is to be held to execute the warrant of removal, U. S. vs. Fletcher, 147 U. S. 664. If upon the hearing it appears that the removal should not be made the judge will refuse the warrant and order the prisoner discharged, in re Dana, 68 Fed. Rep. 886 ; U. S. vs. Rogers, 23 Fed. Rep. 658. He may ad- mit the party to bail and should do so if the party can furnish bail, and to this end he may reduce or increase the bail fixed by the commissioner, U. S. vs. Brawner, 7 Fed. Rep. 86; U. S. vs. Rogers, 28 Fed. Rep. 661; in re Wolf, 27 Fed. Rep. 615. See also note to extradition warrant to arrest prisoner. No. 871. No. 873. Fee Bill of United States Commissioners. United States to , Dr., United States Commissioner for the District of , residing at , for the quarter ending , 190 — . Complaint made by . His official title, . Offense charged, , inviolation United States of Section , R. S., U. S. *Complaint vs. approved by U. S. Attorney, day of , 190 — . Offense committed at , on the day of , 190 — . Place of arrest, . Disposition of case, . II04 CRIMINAL PROCEEDINGS. Date. Drawing complaint, with oath and jurat to same, see Copy of complaint, with certificate to same, 30c . Issuing warrant of arrest, 75c ; entering re- turn, ISC Issuing subpoena or subpoenas in said case, 25c. ; with 5c. for each of witnesses in addition to the first, cts. ; en- tering return, 15c Drawing temporary bond of defendant and sureties, taking acknowledgment of same and justification of sureties, 7SC. Issuing temporary commitment, and making copy of same, $1.00; entering return, ISC Administering oaths to U. S. witnesses on trial, loc. each Hearing and deciding on criminal charges on the day of , 190— j. and re ducing the testimony to writing when required by law or order of court, per diem, $5.00 Same, for one additional day on the — day of , 190 — , because the hearing could not be completed in one day, per diem, $5.00 Drawing bond of defendant and sure,ties, taking acknowledgment of same, and justification of sureties, 75c. . Issuing commitment and making copy of same, $1.00; entering return, 15c. Recognizance of all witnesses in the case, de- defendant being held for court, 50c. . Oath to U. S. witnesses as to attend- ance and travel, Sc each Order, in duplicate, to pay first witnesses on behalf U. S. 30C.", and Sc. for each of additional U. S. witnesses, — cts . . . Transcript of proceedings required by order of court, and transmission of papers to court, 60c Copy of warrant of arrest, with certificate to same, when defendant is held for court and original papers are not sent to court, 40c Examination and certificate in cases of ap plication for discharge of poor convict, (under § 1042 R. S.,) and all services connected therewith in case vs. $3.00 Total fees in case Amount carried forward . > O r* FEE BILL. 1 105 WITNESSES IN ABOVE CASE. SURETIES OF DEFENDANTS IN ABOVE RECOGNIZANCES. NAME. RESIDENCE. NAME. RESIDENCE. No. 874. Affidavit by a United States Commissioner to His Account. United States of America, District of . I, J. N., United States Commissioner for the district of , being duly sworn, depose and say that the foregoing account, amounting to $ , is just and true, as stated there- in ; that no payment has been received by me on account there- of, and that the services therein charged have been actually and necessarily performed as stated ; that in no internal revenue case mentioned in said account was the warrant issued upon the sworn complaint of a private citizen unless first approved in writing by the United States district attorney, and that in each case where two per diems are charged in the account the hearing could not be completed in one day. J. N., United States Commissioner. Subscribed and sworn to before the undersigned this day of , 190 — . B. R., {^Official character.'] No. 875. Order Approving an Account of a United States Commis- sioner. Whereas, J. N., United States Commissioner for the district of , has forwarded an account for his official II06 CRIMINAL PROCEEDINGS. services for the quarter ending , 190 — , duly certified by oath attached to the account, and the district attorney has sub- mitted said account for approval in open court, and it appear- ing to the satisfaction of the court that the services therein charged have been actually and necessarily performed as there- in stated ; and it being proved to the satisfaction of the court that in each of the cases wherein more than one per diem is charged the hearing could not be completed in one day, two per diems in each of said cases are specially approved and allowed by the court ; and whereas, the charges in said account appear to be just and according to law, it is ordered that said account, amounting to ($ ), be, and the same is hereby, approved this day of , 190 — . No. 876. Certificate to Account in Which a United States Commis- sioner Charges Fees in an Internal Revenue Case or Cases. I, W. B., United States Attorney for the district of , hereby certify that I have examined the account of J. N., United States Commissioner for the said district, for the quarter ending , 19 — ; and that in no internal revenue case mentioned in said account was the warrant of arrest issued upon the sworn complaint of a private citizen unless first ap- proved in writing by the district attorney. W. B., United States Attorney. No. 877. Pay Roll of Witnesses Before Commissioner. United States Charge before , United States Com- missioner for the District of , at , on , 190 — . vs. FEE BILL. 1 107 Si e V Per diem. Mileage. Received of — , U. S. marshal, — district of—, the amount set oppo- site our respec- tive names. 3 m V 1 ^" Witnesses' signatures. 1 . .miles, .of. ..miles, .of . .miles, .of . .miles, .of . .miles, .of . .miles, .of Total .. Having sworn and examined the above named per- sons, I certify that they attended as witnesses in behalf of the Unitted States in the above entitled cause, and are each en- titled to the sums set opposite their respective names for attend- ance and travel as such witnesses, amounting in the aggregate to dollars and cents. It is therefore ordered that the marshal pay said witnesses accordingly this , 190 — . , U. S. Commissioner. I certify that all the above witnesses were material and important. , U. S. Attorney. IThe Commissioner's pay roll should be folded and indorsed as follows :] Voucher No. . United States vs. . , Com- missioner. , 190 — . $ , II08 CRIMINAL PROCEEDINGS. INDICTMENTS. No. 878. Writ of Venire for Grand Jury. For form of Writ of Venire, see No. 56. No. 879. Oath or Affirmation of Foreman of Grand Jury. You do solemnly swear [or affirm] that, saving yourself and your fellow-jurors, you, as foreman of this grand inquest, shall diligently inquire, and true presentment make, of all such matters and things as shall be given you in charge, or otherwise come to your knowledge, touching the present service ; the counsel of the United States, your own and your fellows, you shall keep secret, unless called on in a court of justice to make disclosures ; that you shall present no person through malice, hatred, or ill-will, nor shall you leave any person unpresented through fear, favor, or affection, or for any reward or hope thereof, but in all your presentments you shall present the truth, the whole truth, and nothing but the truth, according to the best of your skill and understanding, and this you do as you shall answer to God. \If the foreman should affirm, then add here, "and this you do under the pains and penalties of perjury."] No. 880. Oath or Affirmation of Grand Jurors. You, and each of you, do solemnly swear \or affirm] the same oath which H. B., your foreman, has now taken before you on his part; you and each of you shall well and truly observe, and keep on your respective parts, and this you do INDICTMENTS. IIO9 as you shall answer to God. \If an affirmation is taken in place of oath, then add here, " and this you do under the pains and penalties of perjury."] No. 881. General Form of Indictment. The United States of America, t-t ^. . . ' JMo. . District of , ss. In the Circuit Court of the United States within and for the ' District of , in the Judicial Circuit, of the Term of , in the year of our Lord one thousand eight hundred and ninety . The grand jurors of the United States of America, duly empaneled, sworn, and charged to inquire in and for the said district, upon their oaths and affirmations, present that L. H. on, to wit, the day of , in the year of our Lord one thousand eight hundred and , in the county of , in the state of , in the circuit and district aforesaid, and within the jurisdiction of this court, did, then and there, un- lawfully, knowingly, and with force and arms [here state the offense according to the case, and conclude^ contrary to the' form of the statute in such case made and provided, and against the peace and dignity of the United States of America. [Additional charges may be added, if necessary, as follows .-] Second Count. And the grand jurors aforesaid, upon their oaths and affirmations aforesaid, do further present that L. H., on, to wit, the day of , in the year of our Lord one thousand eight hundred and , in the county of , in the state of , in the circuit and district aforesaid, and within the jurisdiction of this court [here set forth all the offenses, and conclude\, contrary to the form of the statute in such case made and provided, and against the peace and dig- nity of the United States of America. J. H., A true bill. United States Attorney. H. B., Foreman. mo CRIMINAL PROCEEDINGS. INDICTMENTS IN SPECIAL CASES. No. 882. Misapplication of Funds by National Bank Officer (i). The United States of America, District of , ss. In the Circuit Court of the United States, within and for the District of , in the — — Judicial Circuit, of the Term of , in the year of our Lord And the grand jurors aforesaid, upon their oaths and affirmations aforesaid, do present that L. H., on, to wit, the day of , in the year of our Lord , in the county of , in the state of , in the circuit and district afore- said, and within the jurisdiction of this court, he, the said L. H., being then and there president of a certain national banking association, then and there known as the Na- tional Bank of , in the state of , which said associa- tion had been heretofore created and organized under and by virtue of the laws of the United States, and which said asso- ciation was then and there acting and carrying on the bank- ing business at , in the said district, did then and there unlawfully, and willfully, and with intent to injure and defraud the said association, for the use, benefit, and advantage of himself, misapply certain of the moneys, funds, and credits of the said association, to wit: the sum of twenty thousand doUiars ($20,000.00), in the manner and by the means follow- ing, that is to say : That he, the said L. H., as such presi- dent as aforesaid, did then and there cause to be credited upon the books of said association to his, the said L. H.'s, individual account, the said sum of twenty thousand dollars ($ao,ooo.oo), he, the said L. H., not being entitled to be then and there credited upon the said books with the said sum of money, or any part thereof, as he, the said L. H., then and INDICTMENTS IN SPECIAL CASES. IIII there well knew, and did thereby falsely and fraudulently represent to the directors, officers, clerks, and tellers of the said banking association that he, the said h- H., was entitled to draw and have paid out of the moneys and funds of the said association the sum of twenty thousand dollars ($20,- 000.00), and did thereby place at the disposal and subject to the order of the said L. H. certain of the moneys and funds of the said association, to wit : the said sum of twenty thou- sand dollars ($20,000.00), he, the said L/. H., then and there unlawfully, wickedly, and fraudulently devising and intend- ing that he should be enabled to draw and have paid out of the moneys and funds of the said association, and should appropriate and convert to his own use, without right and without being justly entitled thereto, the said sum of twenty thousand dollars ($20,000.00), and thereupon the checks of the said L. H., drawn upon the said association for the said sum of twenty thousand dollars ($20,000.00) being then and there presented to the said association for payment, were, by reason of the credit so made upon the books of the said asso- ciation, as aforesaid, and by the authority of the said L. H., as expressed in the said credit, and in pursuance of the intent aforesaid of the said L. H., then and there drawn and paid out of the moneys and funds of the said association, although, as he, the said L,. H., then and there well knew the said sum of twenty thousand dollars ($20,000.00), so drawn out, paid, and appropriated, had not been deposited with the said asso- ciation by him, or by any other person for his use, and was not then and there due and owing by and from the said asso- ciation to the said L. H., and the repayment thereof to the said association was not then and there in any way secured, and the said L. H. had no manner of right to the same, he, the said L. H., then, there, and thereby intending to defraud and injure the said association, contrary to the form of statute in such case made and provided, and against the peace and dignity of the United States of America. J. H., A true bill. Attorney. H. B., Foreman. 1 1 12 CRIMINAL PROCEEDINGS. No. 883. National Bank Officers Embezzling, etc., Funds (i). The United States of America, District of , ss. In the Circuit Court of the United States, within and for the District of , in the Judicial Circuit, of the Term of , in the year of our Lord one thousand eight hundred and . First Count. The grand jurors of the United States of America, duly empaneled, sworn, and charged to inquire within and for the said district, upon their oaths and affirma- tions, present that L. H. on, to wit, the , day of , and at various times between that date and the day of , in the year of our Lord one thousand eight hundred and , in the county of , in the State of , in the circuit and district aforesaid, and within the jurisdiction of this court, the said L. H. being then and there a director and the vice-president of a certain national banking associa- tion, then and there known and designated as the National Bank of , in the state of , which said association had been heretofore created and organized under the laws of the United States of America, and which said association was then and there carrying on a banking busi- ness in the city of , state of , did then and there unlawfully and willfully misapply the moneys, funds, and credits of the said association without the knowledge and consent thereof, and with intent to convert the same to his own use, to wit : three million dollars ($3,000,000) of the moneys, funds, and credits of the said association, in this, to wit : That the said L. H., as aforesaid, did pay, and cause to be paid to J. K. & Co., I. G. & Co., W. E. & Co., J.W. H., and other persons to the grand jurors unknown, the said sum of three million dollars ($3,000,000) of the funds, mon- eys, and credits of the said association, to be used in certain hazardous and gambling transactions in the city of Chicago, INDICTMENTS IN SPECIAL CASES. III3 Illinois, to wit : To buy for the said L. H. large quantities, to wit : thirty million bushels of wheat in the city of Chicago, Illinois ; he, the said L. H., not intending to pay the full price for said wheat, nor to receive the same in , , but to use the said three million dollars ($3,000,000) in part payment of the price, in expectation of a contingent ad- vance in the market value of said wheat for the benefit, use, and profit and gain of the said L,. H., and certain other persons other than the said association to the grand jurors unknown, and with intent to injure and defraud the said association ; the willful misapplication of the moneys, funds, and credits of the association by him, for the use and ben- efit and with the intent aforesaid by him, the said L,. H. as aforesaid, being then and there contrary to the form of statute in such case made and provided, and against the peace and dignity of the United States of America. Second Count. And the grand jurors of the United States of America, duly empaneled, sworn, and charged to inquire within and for the said district, upon their oaths and afiirmations present that Iv. H., on, to wit, the day of , and at various times between that date and the day of , in the year of our Lord one thousand eight hundred and , in the county of , state of , in the circuit of the district aforesaid, and within the juris- diction of this court, the said L. H. being then and there a director and agent of a certain national banking association then and there known and designated as the National Bank of , in the state of , and which said associa- tion had been therefore created and organized under the laws of the United States of America, and which said asso- ciation was then and there acting and carrying on a banking business in the city of , in said district aforesaid, and the said L. H., director and agent as aforesaid did, by virtue of such his employment, and whilst so employed as afore- said, receive and take into his possession large sums of money and funds to and for the said National Bank, to 1 1 14 CRIMINAL PROCEEDINGS. wit : the sum of three million dollars, for and in the name and on the account of the said association, the National Bank, and the said Iv. H., at the times aforesaid and the place aforesaid, did unlawfully embezzle and convert to his own use certain sums of said funds, moneys, and credits of the said National Bank of , to wit: the sum of two million dollars thereof, a more particular description of the funds, moneys, and credits so embezzled as aforesaid being to the jurors aforesaid unknown, with intent then, there, and thereby to injure and defraud the said National Bank, contrary to the form and provisions of Section 5209 of the United States Revised Statutes in such case made and pro- vided, and against the peace and dignity of the United States of America. Third Count. And the grand jurors aforesaid, upon their oaths and affirmations aforesaid, do further present that L. H. on, to wit, the day of , in the year of our Lord one thousand eight hundred and , in the county of , in the state of , in the circuit and district aforesaid, and within the jurisdiction of this court, being then and there a director and vice-president of the National Bank of , in the state of , and which National Bank was then and there a national banking association, duly organized under the laws of the United States, and then and there car- rying on the business of banking, did, then and there, with intent to injure said association, and without the knowledge and consent thereof, unlawfully and willfully misapply of the moneys, funds, and credits of the said association the sum of two hundred thousand dollars ($200,000.00), in this, to wit, that the said L,. H., as aforesaid, caused himself to be credited on the books of said banking association to the credit of said L. H., and subject to his order and draft and withdrawal, the said sum of two hundred thousand dollars, with intent to con- vert the same to his own use, and the grand jurors, as afore- said, further say that the said Iv. H., as aforesaid, did then and there make a certain writing, to wit, charge ticket, in the words and figures following, to wit : INDICTMENTS IN SPECIAL CASES. III5 The National Bank, , Feb. , 1887. Credit L. H $200,000.00. Amount deposited to credit National Bank in L. H. Charge First National Bank, New York, $200,000.00. And caused the same to be entered on the books of saii^ National Bank to the credit and subject to the order and disposal of the said L. H.; which said writing, to wit, charge ticket, did in substance and effect declare that L,. H. had de- posited to credit of the said National Bank in the First National Bank of New York City, the sum of two hundred thousand dollars, whereas, in truth and fact, as he, the said L. H., then and there well knew, that the said sum of two hundred thousand dollars had not been by him deposited in said First National Bank of New York, to the credit of said National Bank aforesaid, and the said L. H., fraudulently intending and devising to convert the same to his own use; and the grand jurors further say that the said L. H. did then and there willfully misapply the said sum of two hundred thousand dollars, moneys, funds, and credits, and convert the same to his own use, contrary to the form of the statute in such case made and provided, and against the peace and dig- nity of the United States of America. Fourth Count. And the grand jurors aforesaid, upon their oaths and affirmations aforesaid, do further present that L. H., on, to wit, the day of , in the year of our Ivord one thousand eight hundred and , in the county of , in the state of , in the circuit and district aforesaid, and within the jurisdiction of this court, the said L. H. being then and there a director and vice-president of a certain national banking association, then and there known and des- ignated as the National Bank of , in the state of , which said association has been heretofore created and organized under the laws of the United States of America, iii6 CRIMINAL PROCEEDINGS. and then and there carrying on a banking business in the city of , in the state of , did then and there, know- ingly and unlawfully issue and put forth, without the author- ity of the directors of said association, and with intent to con- vert the same to his own use, to the First National Bank of New York City, state of New York, a certificate of deposit in the following words and figures, to wit : The National Bank, O '^ *! •2 n en m to O (U S- -tt 1-1 2 P< o 111 ■>-' -a -u rt 55 rt a 3 o SB t; ^'^ 111 a g u o a -, April No. 500. First National Bank, N. Y., has deposited in this Bank Two Hundred Thousand Dollars, payable to the order ol E. S., Cas. at First National Bank, N. Y., on return of this Certificate, in current funds with five per cent, interest on July , , fixed. I,. H., $200,000.00. V. P. Due July , . And did cause the same to be forwarded to the said First National Bank of New York, he, the said L. H., as aforesaid, then and there well knowing that the said First National Bank had not deposited in the National Bank of , the sum of two hundred thousand dollars ($200,000.00) as set forth in said certificate of deposit, and that no consid- eration had been received by the said association for the said certificate, of deposit. And the grand jurors further say that he, the said L. H., as aforesaid, did then and there procure a loan of two hundred thousand dollars from the First National Bank on the said cer- tificate of deposit for the use, benefit, and gain of the said L. H., the issue of the said certificate of deposit, as aforesaid, without the authority of the directors of the said association, and without the knowledge and consent thereof, with intent to convert the proceeds thereof to his own use, and to injure said association, being then and there contrary to the form INDICTMENTS IN SPECIAL CASES. HI? of the statute in such case made and provided and against the peace, and dignity of the United States of America. Fifth Count. And the grand jiirors aforesaid, upon their oaths and affirmations aforesaid, do further present that L. H., on, to wit, the day of April, in the year of our Lord one thousand eight hundred and , in the county of , in the state of , in the circuit and district afore- said, and within the jurisdiction of this court, the said L. H. being then and there director and vice-president of the National Bank of , then and there a national banking as- sociation heretofore organized under the laws of the United States, and then and there carrying on a banking business in the city of , state of , and of the district aforesaid, and that he, the said L. H., director and vice-president as aforesaid, did then and there unlawfully and willfully, and with intent to injure the said association, the National Bank of , and without the knowledge and consent thereof, and with intent to convert the same to his own use, misapply the funds, moneys, and credits of said association in this, to wit: that the said L,. H., as aforesaid, did then and there procure from the First National Bank of New York the loan of a large sum of money, two hundred thousand dollars ($200,000.00), upon a certificate of deposit of the said National Bank for the sum of two hundred thousand dollars, and certain collateral securities, to wit: bills receivable, choses in action, drafts, and promissory notes, discounted by the said National Bank, unmatured and not then due, and taken by the said National Bank in the regular course of its business, and then and there the property, as- sets, funds, and credits of the said association, of the total face value of one hundred and thirteen thousand dollars ($113,000.00), and then and there of the total money value of one hundred and thirteen thousand dollars ; the said bills receivable, drafts, promissory notes, choses in action, and cer- tificates of deposit being too voluminous, lengthy, and numer- ous to be set forth in this indictment ; IIl8 CRIMINAL PROCEEDINGS. And the grand jurors aforesaid further say that the said L. H., as aforesaid, did then and there convert the said two hundred thousand dollars, so obtained as aforesaid, to his own use, in the purchase by him, the said L. H., for the use, ben- efit, and gain of the said L,. H., a large quantity of wheat, to wit, ten million bushels of wheat ; a more particular descrip- tion thereof, and the persons through whom said purchases were made, being to the jurors aforesaid unknown. And the grand jurors aforesaid, upon their oaths and affirmations aforesaid, do say that the said L. H., director .and vice-presfdent as aforesaid, in the manner and form,, and by the means and for the use and benefit, and with the intent, and without the knowledge and consent aforesaid, did then and there willfully misapply of the moneys, funds, and credits of the said association the said sum of two hun- dred thousand dollars aforesaid, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States of America. Szxi/i Count. And the grand jurors aforesaid, upon their oaths and affirmations aforesaid, do further present that L. H., on, to wit, the day of March, in the year of our Lord one thousand eight hundred and eighty-seven, in the county of , in the State of , in the circuit and district afore- said, and within the jurisdiction of this court, the said L. H. being then and .there director and vice-president of the National Bank of , then and there a national banking association, heretofore organized under the banking laws of the United States, and then and there carrying on a bank- ing business in the city of , state of , and of the district aforesaid, and that he, the said L/. H., director and vice-president as aforesaid, did then and there unlawfully and willfully, and with intent to injure the said association, the — — National Bank of , and without the knowledge and consent thereof, misapply the funds, moneys, and credits of said association, and did pay, and caused to be paid, to O. & C, of Chicago, state of Illinois, out of the moneys, funds, INDICTMENTS IN SPECIAL CASES. III9 and credits of said association, the sum of fifty thousand dollars, lawful money of the United States, in the purchase, by him, the said L. H., from the said O. & C, and other per- sons to said jurors unknown, for the use, benefit, and advan- tage of the said L. H., of a large quantity of wheat, to wit : One million bushels of wheat, a more particular description of said purchase, and the particulars thereof, and of the moneys, funds, and credits so paid, and of the persons and parties composing said copartnership of O. & C, as afore- said, being to the said jurors unknown. And the grand jurors aforesaid, upon their oaths and affirmations aforesaid, do say that he, the said L,. H., director and vice-president, as aforesaid, in the manner and form, and by the means, and for the use and benefit, and with the intent, and without the knowledge and consent aforesaid, did then and there willfully misapply of the moneys, funds, and credits of the said association the said sum of fifty thousand dollars aforesaid, and convert the same to his own use, con- trary to the form of the statute in such case made and provided, and against the peace and dignity of the United States of America. Seventh Count. And the grand jurors aforesaid, upon their oaths and affirmations aforesaid, do further present that L. H., on, to wit, the day of April, in the year of our I/ord one thousand eight hundred and , in the county of , in the state of , in the circuit and district afore- said, and within the jurisdiction of this court, the said I/. H. being then and there a director and vice-president of the National Bank of , in the state of , and which said National Bank was then and there a national bank- ing association, duly organized under the laws- of the United States, and then and there carrying on the business of bank- ing, did then and there unlawfully and willfully, and with intent to injure the said National Bank, and without the knowledge and consent thereof, misapply of the moneys, funds, and credits of the said association the sum of sixty- II20 CRIMINAL PROCEEDINGS. seven thousand and thirty-seven dollars and fifty cents ($67,037. 50), lawful money of the United States, in this, to wit: That the said L. H., as aforesaid, did pay, and cause to be paid, out of the moneys, funds, and credits of the said National Bank, for the use, profit, and gain of the said I/. H., a draft in the following words and figures, to wit : $67,037.50. American Exchange Nat'l Bank. I. G. & Co. No. 97. Chicago. Chicago, April 29, 1887. Pay to order of A. L. D., Cashier, Sixty Thousand and Thirty-seven 50-100 Dollars. The Nat'l Bank, , — r-. Value received, and charge the same to account of I. G. & Co. On the back of which said draft are indorsed the following words : " Pay Nat'l Bank, , , or order, for collection, account of American Exchange Nat'l Bank of Chicago. A. L. D., Cashier." He, the said L,. H., well knowing that the said I. G. & Co. had no moneys, funds, or credits in said National Bank to pay said draft, and that the said association had received no consideration for the same, and that the same was with- out its knowledge and consent ; and he, the said h. H., then and there fraudulently intending and devising that the said I. G. & Co. should obtain possession of the said sixty-seven thousand and thirty-seven dollars and fifty cents ($67,037.50) for the use, benefit, and gain of the said L. H.; and the grand jurors further say that the said sum of sixty-seven thousand and thirty-seven dollars and fifty cents ($67,037.50), moneys, funds, and credits of the said National Bank, a more ac- curate and particular description of said moneys, funds, and INDICTMENTS IN SPECIAL CASES. 1 121 credits being to the jurors aforesaid unknown, was then and there unlawfully misapplied and converted to the use of the said L. H., contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States of America. Eighth count. And the grand jurors aforesaid, upon their oaths and affirmations aforesaid, do further present that L. H., on, to wit, the day of June, in the year of our Lord one thousand eight hundred and , in the county of , in the state of , in the circuit and district aforesaid, and within the jurisdiction of this court, the said L. H. being then and there a director and the vice-president of a national banking asspciation organized under the banking laws of the United States, to wit, the National Bank of , in the state of , and of the district aforesaid, and which said National Bank as aforesaid was then and there carry- ing on the business of banking as aforesaid, did, without the knowledge and consent of said bank, knowingly make and cause to be made by one C. T. A., then and there a clerk in said bank, in a book then and there belonging to and in use by the said association in the transaction of its banking busi- ness, and designated and known as " Individual No. 2, A. to J.," a certain entry to the credit of I. G. & Co., of Chicago, in the state of Illinois, in the words and figures following, to wit : I. G. & Co. Cr. Bal. 18 . June , $285,000. $285,000. And which said entry, so as aforesaid made in said book, did, in substance and effect, declare that the said association had in its possession the sum of two hundred and eighty-five thousand dollars ($285,000) belonging to said I. G. & Co., subject to the order of said I. G. & Co.; and the grand jurors aforesaid further say that the said entry so made as aforesaid ■was false in this, to wit, that the . said association did not 1 122 CRIMINAL PROCEEDINGS. have in its possession the sum of two hundred and eighty- five thousand dollars (1285,000), nor any part thereof, as he, the said L. H. as aforesaid, then and there well knew, and that the said entry so made was false in this, to wit, that the said association had not received from any person or persons the said sum of two hundred and eighty-five thousand dol- lars ($285,000) for, to, and on account of said I. G. & Co., nor had the said association loaned to the said I. G. & Co. the said sum of two hundred and eighty-five thousand dollars ($285,000), as he, the said L. H., then and there well knew ; he, the said L. H., intending then, there, and thereby to de- fraud the said association, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States of America. Ninth Count. And the grand jurors aforesaid, upon their oaths and affirmations aforesaid, do further present that L. H., on, to wit, the day of June, in the year of our Lord one thousand eight hundred and , in the county of , in the state of , in the circuit and district aforesaid, and within the jurisdiction of this court, the said L. H. being then and there a director and agent of the National Bank of , then and there a national banking association heretofore organized under the banking laws of the United States, and then and there carrying on a banking business in the city of , state of , and of the district afore- said ; and he, tl;ie said L. H., as aforesaid, did then and there unlawfully and fraudulently abstract and convert to his own use property, credits, and funds of the said National Bank of the value of one million dollars, which had come into his possession, and which were entrusted to him, the said L. H., as such director and vice-president of the said association ; and the grand jurors aforesaid further say that the said L. H., as aforesaid, did then and there abstract, and surrepti- tiously obtain, without the knowledge and authority of the directors of the said association, and without the knowledge and consent of said association, and with intent to convert INDICTMENTS IN SPECIAL CASES. 1 1 23 I the same to his own use, a large number of bills receivable, drafts, choses in action, and promissory notes unmatured and not then due and payable, and other collateral securities then and there the assets, funds, credits, and property of said association, and heretofore discounted and taken in the reg- ular course of its business by the said National Bank, as aforesaid, of the total face value of one million dollars, and of the total money value of one million dollars, the said bills receivable, choses in action, drafts, promissory notes, and a more accurate description of the same being too numerous, voluminous, and. lengthy to be set out in this indictment (and a more particular description of the same being to the said jurors aforesaid unknown), the unlawful and fraudulent abstraction of the said funds, assets, and property of the said National Bank by him, the said L. H., as aforesaid, with intent to convert the same to his own use, and to defraud said association, being then and there contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States of America. J-H., U. S. Attorney. (i) See R. S., Sec. 5209. Taken from tlie record in U. S. vs. E. L. Harper, and sustained in the Circuit Court of the United States for the Southern District of Ohio. See U. S. vs. Harper, 33 Fed. Rep., 471. No. 884. Using Mails Concerning Scheme to Defraud (R, S., Sec. 5480). The United States of America, -j^ District of , ss. In the Circuit Court of the United States within and for the District of , in the Judicial Circuit, of the Term of , in the year of our Lord i8 — . The grand jurors of the United States of America, duly em- paneled, sworn, and charged to inquire within and for the 1 1 24 CRIMINAL PROCEEDINGS. district of , upon their oaths and affirmations pre- sent that L. H. (doing business under the name and style of L. H. & Co.), on, to wit, the day of , i8 — , in the county of , in the state of , in the circuit and district aforesaid, and within the jurisdiction of this court, did then and there unlawfully, knowingly, and fraudulently devise a scheme and artifice to defraud various persons, whose names are to the grand jurors aforesaid unknown ; said scheme and artifice to be effected by inciting the said various persons, whose names are to the grand jurors aforesaid unknown, to open communication with him, the said L. H. (doing business under the name and style of L. H. & Co.), by means of the post-office establishments of the United States, and which said misuse of the post-office establishments of the United States was then and there a part of said scheme to defraud, by falsely pretending in and through certain advertisements, letters, and circulars, which said advertisements, letters, and circiilars are too lengthy, voluminous, and otherwise unfit to be set forth in this instrument, to be desirous of employing persons to advertise electric belts, and tack up advertisements and show-cards of electric goods in town and country, and if the said persons would introduce two of said electric belts, and secure written testimonials from not less than two per- sons who had been cured or benefited by the belts, that then he, the said h- H. (doing business under the name and style of L,. H. & Co.), would enter into an agreement to pay the said persons so introducing belts and securing written testi- monials as aforesaid, a monthly salary of $ (payable semi-monthly), and all necessary expenses to advertise said belts, and also to be desirous of making two trial belts abso- lutely free to all honest applicants for said employment, and if the said persons would pay $ — ■■ — for said two trial belts as a guarantee, that then he, the said L. H., would refund the same after they, the said persons, had commenced work per- manently by the month as aforesaid ; When, in truth and in fact, he, the said L. H. (doing busi- ness as aforesaid), was not desirous of employing persons to INDICTMENTS IN SPECIAL CASES. . ., 1125 advertise electric belts, and tack up advertisements and show- cards of electric goods in town and country upon the terms as set forth in said advertisements, letters, and circulars as aforesaid, and never intended to enter into an agreement to pay the said persons so introducing two of said electric beltSj and securing written testimonials as aforesaid, a monthly salary of $ (payable semi-monthly), and all necessary expenses to advertise said belts ; and when, in truth and in fact, he, the said L,. H. (doing business as aforesaid), never intended to make two trial belts absolutely free to all honest applicants for said employment, and never intended to refund the said $ if they, the said persons, applicants as afore- said, would pay the same for said two trial belts as a guarantee, after they, the said persons, had commenced work perma- nently by the month as aforesaid, and never intended to em- ploy said persons, or any of them, applicants as aforesaid, permanently by the month ; But was deceiving each of the said various persons (whose names are to the grand jurors aforesaid unknown) by induc- ing them, the said various persons (whose names are to the grand jurors aforesaid unknown), to pay him, the said L. H. (doing business as aforesaid), a sum of money, to wit, $ . And the grand jurors aforesaid, upon their oaths and af- firmations aforesaid, do further present that the said L. H. (doing business as aforesaid) did wrongfully and unlawfully, then and there, and in execution of said artifice and scheme, and misusing the post-office establishment of the United States, receive and take from the post-office in , various letters addressed to L,. H. & Co., , (a more par- ticular description of said letters being to the grand jurors aforesaid unknown), as mailed by said various persons (whose names are to the grand jurors aforesaid unknown) at various post-offices of the United States, the names of the said post- offices being to the grand jurors aforesaid unknown, con- trary to the form of the statute in such case made and pro- vided, and against the peace and dignity of the United States of America. 1 1 26 CRIMINAL PROCEEDINGS. " Second. And the grand jurors aforesaid, upon their oaths and affirmations aforesaid, do further present that L. H. (do- ing business under the name and style of L. H. & Co.), on, to wit, the day of , in the year of our Lord, i8 — , in the county of , in the state of , in the circuit and district aforesaid, and within the jurisdiction of this court, did then and there, unlawfully, knowingly, and fraudulently, devise a scheme and artifice to defraud one W. C, and other persons (whose names are to the grand jurors aforesaid un- known), said scheme and artifice to be effected by opening correspondence with him, the said W. C, and other persons (whose names are to the grand jurors unknown), by means of the post-office establishment of the United States, and which said scheme and artifice to defraud in the advertise- ment, letter, or circular, in the words and figures following, to wit : \here set forth the advertisement, circular, or letter in fuir\. And the grand jurors aforesaid, upon their oaths and affirmations aforesaid, do further present that the said scheme and artifice, as set forth in said advertisement, letter, or cir- cular, issued by said L. H. (doing business as aforesaid), was false and fraudulent, among other things, in this, to wit: that he, the said L,. H. (doing business as aforesaid), was not de- sirous of employing persons to advertise electric belts, and tack up advertisements and show-cards of electric goods in town and country upon the terms as set forth in said adver- tisement, letter, or circular, as aforesaid, and never intended to enter into an agreement to pay the said person so intro- ducing two electric belts, and securing written testimonials as aforesaid, a monthly salary of $ (payable semi-monthly), and all necessary expenses to advertise said belts; and, also, in this, to wit : that he, the said I/. H. (doing business as aforesaid), was not desirous of making two trial belts abso- lutely free to all honest applicants for said employment, and never intended to refund the said $ , as stated in said advertisement, letter, or circular, as aforesaid, if they, the INDICTMENTS IN SPECIAL CASES. II27 said persons, applicants as aforesaid, would pay the same for said two trial belts as a guarantee after they, the said per- sons, had commenced work permanently by the month, as aforesaid, and never intended to employ said persons, appli- cants, as aforesaid, permanently by the month, as therein stated, but was so falsely pretending to, deceiving, and de- frauding the said W. C, and other persons (whose names are to the grand jurors aforesaid unknown), by inducing him, the said W. C, and other persons (whose names are to the grand jurors aforesaid unknown), to pay him, the said L,. H. (doing business as aforesaid), a sum of money, to wit, $ . And the grand jurors aforesaid, upon their oaths and af- firmations aforesaid, do further present that the said L. H. (doing business as aforesaid) did then and there, unlawfully and knowingly, and in execution of said scheme and artifice, and misusing the post-office establishment of the United States, place in a post-ofiice of the United States, to wit, in' the postoffice at , , in the circuit and district afore- said, and within the jurisdiction of this court, a certain let- ter, to wit, a letter addressed to W. C, , , contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States of America. J. H., United States Attorney. A true bill. H. B., Foreman. Taken from the record in U. S. vs. John C. Emory, and sustained in the Circuit Court of the United States for the Southern District of Ohio. 1 128 CRIMINAL PROCEEDINGS. No, 885. Scheme to Defraud — Misuse of Mails (Insurance Co.) (i). The United States of America, ,, ^. . - No. . District of , ss. In the District Court of the United States, within and for the District of , in the Judicial Circuit, of the Term of , in the year of our I^ord one thousand eight hundred and . The grand jurors of the United States of America, duly empaneled, sworn, and charged to inquire within and for the district, upon their oaths and afl&rmations, present that L,. H., on, to wit, the day of , in the year of our Ivord one thousand eight hundred and , in the county of , and state of , in the circuit and district aforesaid, and within the jurisdiction of this court, having theretofore devised a scheme and artifice to defraud the C. O. Co., N. B., S. A. S., and certain other persons, whose names are to these grand jurors unknown, of large sums of money, to wit, $ , to be effected by intending to open, and by opening, correspondence and communication with the said persons and corporation last above-named, and certain unknown persons, by means of the post-office establishment of the United States, which said use and misuse of the pos t- office establishment of the United States was a part of the said scheme to defraud, and which said scheme and artifice to defraud was and is in substance and effect as follows, to wit : to form, organize, and carry on certain pretended fire and marine insurance companies under the names, to wit. The C. Fire Insurance Co., of , The E. Fire Insurance Co., of , The W. Fire and Marine Insurance Co., of , The H. Insurance Co., of , and the U. S. Fire Insurance Co., of ; and pretending that said insurance companies were owned and conducted and managed by men of good standing in the community, and possessed of property, assets, and funds to meet losses and damages by fire, which INDICTMENTS IN SPECIAL CASES. 1 1 29 might arise to persons assured, and to whom policies of insurance had been and would be issued, when, in truth and in fact, the said pretended fire insurance companies, as above named and set forth, were fictitious and fraudulent, and were, in fact, carried on by the said L. H., and other persons whose names are to these grand jurors unknown, as schemes and artifices to defraud the persons and parties insured out of the money paid as premiums, and never intending to pay any loss or damage by fire to the persons insured, and to whom the said so-called policies of insurance were issued. And the grand jurors aforesaid further say that the said defendants above named, and other persons to these grand jurors unknown, in the names of the above-mentioned insurance companies of , and upon the payment by the said C. O. Co., N. B., and S. A. S., of $ , issued to the last- named parties and corporation and persons certain so-called policies of insurance against damage or loss by fire; and which said pretended insurance companies were then and there fictitious and fraudulent in this, to wit, that no such companies as the C. Fire Insurance Co., of ^ — , The E. Fire Insurance Co., of , the W. Fire and Marine Insur- ance Co., of , The H. Fire Insurance Co., of , and the U. S. Fire Insurance Co., of , all of , then existed or have a place of business in said places in , nor is there any ofiice of such companies, nor persons carrying on the business for and in behalf of such companies, nor do such companies own property, funds, or assets in , or elsewhere, as they, the said above-named defendants, then and there well knew. And the grand jurors aforesaid, upon their oaths and afl[irmations aforesaid, do further present that L,. H., in executing said scheme and artifice to defraud, and in attempting so to do, did, on the day of , 1894, then and there receive from the post-office at , , a large number, to wit, five registered letters, directed as follows : 1 130 CRIMINAL PROCEEDINGS. No. No. No. No. No. The C. Fire Insurance Company, , . The E. Fire Insurance Company, , . The W. Fire and Marine Insurance Company, The H. Fire Insurance Company, , The U. S. Fire Insurance Company, He, the said L. H., intending then and there to defraud the said C. O. Co., N. B., and S. A. S., contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States of America. Second. And the grand jurors aforesaid, upon their oaths and afl&rmations aforesaid, do further present that L. H., on, to wit, the day of , in the year of our Lord one thousand eight hundred and , in the county of , state of , in the circuit and district aforesaid, and within the jurisdiction of this court, having theretofore devised a scheme and artifice to defraud one N. B., and certain persons whose names are to these grand jurors unknown, of large sums of money, to wit, $ , to be effected by intending to open, and by opening a correspondence and communication with the said N. B., and unknown persons, by means of the post-ofl&ce establishment of the United States, which said use and misuse of the post-oifice establishment of the United States was a part of the said scheme to defraud, and which said scheme and artifice to defraud was and is in sub- stance and effect as follows, to wit: By making and causing to be made false and fraudulent representations to induce the said N. B., and certain other persons whose names are to these grand jurors unknown, to insure their buildings, ma- chinery, and other property in the following-named company, the W. Fire and Marine Insurance Company, of , , and representing said company to be carrying on a legitimate business as insurers against loss or damage by fire, and representing that said company was then and there owned, and conducted, and managed by men of good standing in the INDICTMENTS IN SPECIAL CASES. II3I ■ community, and that said company was solvent, and pos- sessed of capital and means to pay the losses and damage by fire which might arise and occur to the persons insured, and to whom policies of insurance would be issued upon the pay- ment of certain premiums; when, in truth and in fact, said pretended insurance company, to wit, the W. Fire and Ma- rine Insurance Company, of , , was fictictious and fraudulent, and was carried on by the said L. H., and the persons whose names are to these grand jurors unknown, as a scheme and artifice to defraud the persons assured, and to whom policies of insurance were issued out of the money paid as premiums, and never intending to pay any loss or damage by fire to the persons assured, and to whom policies were issued, and said policies and said company were schemes and artifices to defraud ; And the grand jurors aforesaid further say that the said It. H., and other persons whose names are to these grand jurors unknown, in the name of the W. Fire and Marine Insurance Company, of , , and upon the payment by the said N. B. of $ to the said L,. H., and other persons as afore- said, issued to the said N. B. a so-called policy of insurance, undertaking to insure the said N. B. against damage or loss by fire upon the building and goods of the said N. B., be- tween the day of , i8 — , and the day of , 18 — , as set forth in the said policy, for the full sum of $ , and which said policy of insurance is too voluminous to be set forth in this instrument, and which said insurance com- pany was then and there fictitious and fraudulent in this, to wit, that no such company existed, nor has a place of business in , , nor elsewhere, nor is there any office of such company or persons carrying on the business for and on behalf of such company, nor does such company own funds or assets in , , nor elsewhere, as he, the said L,. H. and the said other persons then and there well knew ; and although the said N. B. suffered loss and damage by fire, the said company never paid, and never intended to pay or compen- sate, him for such loss ; 1 132 CRIMINAL PROCEEDINGS. And the grand jurors aforesaid, upon their oaths and affir- mations aforesaid, do further present that L. H., in executing said scheme and artifice to defraud, and in attempting so to do, did then and there receive from the post-office at , , one registered letter, No. — : — , directed as follows, to L. H., President of W. Fire and Marine Insurance Company, -, No. street, , and registered day of , 18 — , , , he, the said L. H., and the said other persons whose names are to these grand jurors unknown, intending then and there and thereby to defraud the said N. B., and the misuse of the post-office establish- ment of the United States, by him, the said L,. H., and the said other persons whose names are to the grand jurors un- known, as aforesaid, being then and there contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States of America. A true bill. J. H., H. B., United States Attorney. Foreman. (i) Taken from the record in U. S. vs. John R. Elderkin, and sus- tained in the District Court of the United States for the Southern Dis- trict of Ohio. No. 886. Mailing Lottery Circulars (R. S., Sec. 3894, as amended September ig, i8go). The United States of America, „ District of , ss. In the District Court of the United States, within and for the District of — — , in the Judicial Circuit, of the Term of , in the year of our Lord one thousand eight hundred and : jFzrsi Count. The grand jurors of the United States of America, duly empaneled, sworn, and charged to inquire within and for the said district, upon their oaths and affirma- INDICTMENTS IN SPECIAL CASES. 1X33 tions, present that I/. H., on, to wit, the day of , in ) the year of our Lord one thousand eight hundred and in the county of , in the state of , in the circuit and district aforesaid, and within the jurisdiction of this court, did knowingly cause to be delivered by mail certain cir- culars forbidden to be delivered by mail, to wit : a certain circular and publication of and concerning a lottery offer- ing prizes, which said circular and publication contained an advertisement and list of prizes awarded at a drawing of said lottery, which circular and publication was numbered , and purported to be issued from the banking-house of It. H., at No. street, was dated , day of , 1894, and was inclosed in an envelope directed to J. B., No. street, , , in said district, and was carried by mail for delivery to said J. B., No. street, , ; did then and there unlawfully and know- ingly cause said circular and publication concerning said lot- tery, which circular and publication is too voluminous to be spread upon the records of this honorable court, to be deliv- ered by mail, according to said direction, to said J. B., No. street, , , the knowingly causing said cir- cular and publication to be delivered by mail, as aforesaid, being then and there contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States of America. Second Count. And the grand jurors aforesaid, upon their oaths and affirmations aforesaid, do further present that L. H., on, to wit, the day of , in the year of our Lord one thousand eight hundred and , in the county of , in the state of , in the circuit and district aforesaid, and within the jurisdiction of this court, did then and there, un- lawfully and knowingly, cause to be delivered a large num- ber, to wit, [fifteen, or as may be\ of circulars and publica- tions concerning a lottery offering prizes to persons whose names and post-office addresses are to these grand jurors un- known, each of which circulars and publications was in- 1 1 34 CRIMINAL PROCEEDINGS. closed in an envelope and directed to a person whose name and post-office address is to these grand jurors unknown, in said district, said large number of circulars and publications, inclosed in envelopes and directed as aforesaid, having been theretofore on the day of , i8 — , unlawfully and knowingly deposited and caused to be deposited in a post- office of the United States, to wit, the post-office at , in the state of , for delivery by mail to said persons whose names and post-office addresses are to these grand jurors un- known, in said district, according to the directions on said envelopes, as aforesaid, and which circulars and publications were then and there carried by mail and delivered to said unknown persons in said district; the causing to be depos- ited by the said L. H. of said circulars and publications, to said persons, by mail as aforesaid, being then and there con- trary to the form of the statute in such case made and pro- vided, and against the peace and dignity of the United States of America. J. H., United States Attorney. A true bill. H. B., Foreman. Taken from the record in U. S. vs. E. H. Horner, and sustained in the District Court of the United States for the Southern District of Ohio. No. 887. Mailing Libelous Postal Cards (Act of Sept. 26, 1888.) The United States of America, t.t District of , ss. In the District Court of the United States, within and for the District of , in the Judicial Circuit, of the Term of , in the year of our Lord one thou- sand eight hundred and : First Count. The grand jurors of the United States of America, duly empaneled, sworn, and charged to inquire INDICTMENTS IN SPECIAL CASES. II 35 within and for the said district, upon their oaths and affirma- tions, present that L,. H., on, to wit, the day of , in the year of our Lord one thousand eight hundred and , in the county of , in the state of , in the circuit and district aforesaid, and within the jurisdiction of this court, did then and there unlawfully and knowingly deposit and cause to be deposited in a post-office of the United States, to wit, the post-office at , in the state of , for mailing and delivery, a certain postal card, otherwise mailable by law, directed to A. H., , , and postmarked , , day of , 3:30 p. m., 1894, upon which postal card were then and there written epithets, terms, and lan- guage of a libelous, defamatory, and threatening character, which epithets, terms, and language were then and there cal- culated, by the terms and manner and style of display, and obviously intended to reflect injuriously upon the character and conduct of one A. H., and which epithets, terms, and language were and are of the following tenor and effect, that is to say : [sei forth terms and language used in fulf\, which epithets, terms, and language he, the said L. H., then and there well knew were of a threatening character and were calculated, as aforesaid, to reflect injuriously upon the character and conduct of said A. H., and that the same were obviously intended to so reflect, and were by him, the said L. H., then and there, intended to so reflect upon the char- acter and conduct of the said A. H., contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States of America. J-H., United States Attorney. A true bill. H. B., Foreman. Taken from the record in the U. S. vs. Harry B. Clutes, and sustained by the District Court of the United States for the Southern District of Ohio. 1 1 36 CRIMINAL PROCEEDINGS. No. 888. Taking Obscene Pamphlet from the Mail (i) (R. S., Sec. 3893) The United States of America, „ ^. . . ' No. . District of , ss. In the District Court of the United States, within and for the District of , in the Judicial Circuit, of the Term of , in the year of our Lord one thou- sand eight hundred and . J^trsi Count. The grand jurors of the United States of America, duly empaneled, sworn, and charged to inquire within and for the said district, upon their oaths and afl&rmft- tions, present that L. H., on, to wit, the day of , in the year of our Lord one thousand -eight hundred and , in the county of , in the state of , in the circuit and district aforesaid, and within the jurisdiction of this court, did then and there unlawfully and knowingly cause to be taken from the mails of the United States, for the purpose of circulating and disposing of the same, a certain obscene, lewd, and lascivious pamphlet, entitled \set forth the title\ , and which said obscene, lewd, and las- civious pamphlet, entitled as aforesaid, was inclosed in a wrapper ahd directed to A. M., and had been conveyed in the mails of the United States, and which said obscene, lewd, and lascivious pamphlet contains language too lewd, ob- scene, and lascivious to be set forth in the records of this honorable court ; he, the said L. H., then and there well knowing the said pamphlet to be obscene, lewd, and las- civious, and knowingly causing the same to be taken from the mails of the United States, for the purpose aforesaid, by him, the said L,. H., being then and there contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States of America. J. H., A true bill. United States Attorney. H. B., Foreman, (i) Taken from the record in U. S. vs. Miller, and sustained in the District Court of the United States for the Southern District of Ohio. INDICTMENTS IN SPECIAL CASES. 1 137 No. 889. Mailing Obscene Letter (i) (R. S., Sec. 3893, as amended September 26, 1888). The United States of America, -j^ District of , ss. In the District Court of the United States, within and for the District of , in the Judicial Circuit, of the Term of , in the year of our Lord one thousand eight hundred and . First Count. The grand jurors of the United States of America, duly empaneled, sworn, and charged to inquire within and for the said district, upon their oaths and aifirmations, present that L. H., on, to wit, the day of , in the year of our lyord one thousand eight hundred and , in the county of , in the state of , in the circuit and district aforesaid, and within the jurisdiction of this court, did then and there unlawfully and knowingly deposit and caused to be deposited in a post-ojBice of the United States, to wit, the post-office at , , for mailing and delivery, certain non-mailable matter, to wit, a letter in- closed in an envelope, and which said letter was ob- scene, lewd, and lascivious, and is unfit to be set forth in this instrument, and to be spread upon the records of this honorable court, and which said envelope, containing the letter as aforesaid, was then and there directed to G. H., , , he, the said L. H., knowing the said letter to be obscene, lewd, and lascivious, and the mailing by him as aforesaid being then and there contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States of America. A true bill. J. H., H. B., Foreman. United States Attorney. (i) Taken from the record in the U. S. vs. Charles A. I,ove, and sus- tained in the District Court of the United States for the Southern District of Ohio, 1 1 38 CRIMINAL PROCEEDINGS. No. 890. Indictment for Using the Mails for Blackmailing Scheme, R. S., Sec. 5480. United States of America, Division of the District of , ss. In the District Court of the United States, within and for the Division of the District of , in the judicial circuit, of the term of April in the year of our Lord one thousand nine hundred and . First Count. The grand jurors of the United States of America, duly empaneled, sworn and charged to inquire within and for the division of said district, upon their oaths and affirmations, present that F. H., A. H. and C. S., on, to wit, the day of , in the year of bur Lord one thousand nine hundred and , in the county of , in the state of , in the circuit and division of the district aforesaid, and within the jurisdiction of this court, did then and there unlawfully and knowingly devise a scheme and artifice to de- fraud H. D. and Dr. C. D., said scheme and artifice to be effected by opening and intending to open correspondence and communication with said H. D. and Dr. C. D., all residents within the United States, by means of the postoffice establish- ment of the United States, which said misuse of the postoffice establishment was intended to be and was a part of said scheme and artifice to defraud, which was in substance as follows, to wit: The said F. H., A. H. and C. S. pretended and claimed to have within their knowledge certain information of unlawful acts and crimes committed by the said H. D. and Dr. C. D., which would tend to disgrace and degrade them, and which they, the said F. H., A. H. and C. S., threatened to divulge and make public both through the newspapers and by the medium of correspondence and letters addressed to many parties who were friends and acquaintances of H. D. unless the said H. D. and Dr. C. D. would yield and pay to them, the INDICTMENTS IN SPECIAL CASES. II 39 said F. H., A. H. and C. S., the sum of $7,000, but only upon consideration of such payment would said last named par- ties refrain from such publication and from sending such let- ters. The said F. H., A. H. and C. S. did not intend or expect to furnish or exchange anything of value in considera- tion of the payment of said money to them, but threatened that unless the same should be paid they would blacken the char- acter and ruin the reputation of the said H. D. and Dr. C. D., who for fear of said threats of exposure of said pretended information through this scheme of fraud, which is commonly called " blackmail," were expected to submit to the extortion of said sum of money, to be paid to and for the benefit of the said F. H., A. H. and C. S., the said last named parties well knowing that they were to give or exchange nothing whatever of value therefor; the said scheme and artifice was then and there devised and concocted by the said F. H., A. H. and C. S. with the sole intent and purpose of defrauding the said H. D. and Dr. C. D. out of said large sum of money, to wit, the sum of $7,000. And the grand jurors aforesaid, upon their oaths and affirm- ations aforesaid, do further present that the said F. H., A. H. and C. S., in pursuance of said scheme and artifice to de- fraud, did unlawfully, wilfully and knowingly, upon the day of in the year of our Lord one thousand nine hun- dred and , in the county, state, circuit, district and division aforesaid, in and for executing said scheme and artifice to de- fraud, and in attempting so to do, and in misuse of the post- office establishment of the United States, as aforesaid, deposit and place and cause to be deposited and placed in the post- office at , a certain letter which was intended to be sent, and which was in fact sent by the postoffice establishment and delivered through the mails of the United States to the ad- dressee thereof and which said letter was enclosed in an en- velope addressed to " Mr. H. D., 141 East Fourth street, City, Strictly Private," and which said letter was in the following 1 140 CRIMINAL PROCEEDINGS. language, to wit : \_Here set out the language referred to in fuU.:\ Said letter was designed to be and was sent by the said post- office establishment, and was delivered through the mails of the United States to the addressee thereof, and was written and mailed in pursuance of said scheme and artifice to defraud H. D. and Dr. C. D. ; contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States of America. W. B., United States Attorney. (i) Taken from Herman vs. U. S., 116 Fed. Rep., 350; certiorari to the Supreme Court denied, 188 U. S. No. 891. Conspiracy to Defraud the United States (R. S., Sec. 3894, as Amended Sept. 19, 1890) (i). The United States of America, Division of the District of , ss. No. . In the District Court of the United States, within and for the division of the district of , in the judicial circuit, of the term of in the year of our Lord one thousand nine hundred and — - — . The grand jurors of the United States of America, duly em- paneled, sworn and charged to inquire within and for the division of said district, upon their oaths and affirma- tions, present " That on the ist day of April, in the year of our Lord one thousand eight hundred and ninety-one, in the county of , state of , and within the jurisdiction of this court, one W. S., one G. R., one E. L., one P. T., and one H. H., and others to the grand jury unknown, did commit the crime of conspiracy to defraud the United States, committed as fol- lows : " That at the time and place aforesaid the said W. S., G. R., INDICTMENTS IN SPECIAL CASES. II4I E. L., P. T. and H. H., and others to the grand jury unknown did falsely, unlawfully, and wickedly conspire, combine, con- federate, and agree together among themselves to defraud the United States of the title and possession of large tracts of land in said county of great value, by means of false, feigned, il- legal and fictitious entries of said lands under the homestead laws of the United States, the said lands being then and there public lands of the United States, open to entry under said homestead laws at the local land office of the United States at Devil's Lake, in said state, and that a.ccording to and in pur- suance of said conspiracy, confederacy and agreement among themselves had as aforesaid the said W. S. did persuade one C. P. to make filing under said homestead laws and thereafter to make proof and final entry under said laws for the lands known and described as follows : " The south half of the northeast quarter and lots one and two of section six, in township one hundred and sixty- three north, of range seventy west, of the fifth principal meridi- an, said lands lying and being in said county, on which said lands said C. P., as said W. S. then and there well knew, had never made settlement, improvement, or residence, contrary to the form of the statute of the United States in such case made and provided, and against the peace and dignity of the United States." J. H., United States Attorney. (i) Taken from Dealy vs. United States, 152 U. S. 540. No. 892. Indictment for Robbing Post-Office (i) (R. S., Sees. 5478 and 5475). The United States of America, t,t T^- ■ ^ No. . District of , ss. In the Circuit Court of the United States, within and for the District of , in the Judicial Circuit, of the Term of , in the year of our L,ord one thousand eight hundred and . 1 142 CRIMINAL PROCEEDINGS. First Count. (R. S., Sec. 5478.) The grand jurors of the United States of America, duly empaneled, sworn, and charged to inquire within and for the said district, upon their oaths and affirmations, present that L. H., on, to wit, the day of , in the year of our Lord one thousand eight hundred and , in the county of , in the state of , in the circuit and district aforesaid, and within the jurisdiction of this court, did then and there unlawfully, willfully, and forcibly break into a certain building used in part as a post-office of the United States, to wit, a building in , in said county, so used as aforesaid, with intent to commit larceny therein, that part of the building used as a post-office as aforesaid, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States of America. Second Count. (R. S., Sec. 5475.) And the grand jurors aforesaid, upon their oath's and affirmations aforesaid, do further present that I/. H., on, to wit, the day of , in the year of our Lord one thousand eight hundred and , in the county of , in the state of , in the cir- cuit and district aforesaid, and within the jurisdiction of this court, did then and there unlawfully and willfully steal and purloin certain property belonging to the post-office depart- ment of the United States, to wit, eight hundred postage stamps of the denomination of cents, two hundred post- age stamps of the denomination of cents, three hundred postage stamps of the denomination of cents, which said property was of the value of more than twenty-five dol- lars, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States of America. Third Count. And the grand jurors aforesaid, upon their oaths and affirmations aforesaid, do further present that I/. H., on, to wit, the day of , in the year of our Lord one thousand eight hundred and , in the county of , in the state of , in the circuit and district aforesaid, and INDICTMENTS IN SPECIAL CASES. II43 within the jurisdiction of this court, did then and there un- lawfully and willfully appropriate to his own use for lucre and gain, certain property belonging to the post-ofSce de- partment of the United States, to wit, eight hundred postage stamps of the denomination of cents, two hundred postage stamps of the denomination of cents, three hundred postage stamps of the denomination of cents, eight hundred stamped envelopes of the denomination of cents, which said property was of the value of more than twenty-five dollars, contrary to the form of the statute in such case made an4 provided, and against the peace and dignity of the United States of America. J- H., A true bill. United States Attorney. H. B., Foreman. (i) Taken from the record in the U. S. vs. Jesse Peterson, and sus- tained in the Circuit Court of the United States for the Southern District of Ohio. No. 893. Violation of Postal Laws (i) (R. S., Sees. 3892 and 6469). The United States of America, District of , ss. " ' In the District Court of the United States, within and for the District of , in the Judicial Circuit, of the Term of , in the year of our Lord one thou- sand eight hundred and . Fzrsi Count. The grand jurors of the United States of America, duly empaneled, sworn, and charged to inquire within and for the said district, upon their oaths and af- firmations, present that L. H., on, to wit, the day of , in the year of our Lord one thousand eight hundred and , in the county of , in the state of , in the circuit and district aforesaid, and within the jurisdiction of this court, did then and there unlawfully take a letter which 1 144 CRIMINAL PROCEEDINGS. had been in the post-office of the United States, to wit, the post-office at , , and in the custody of a letter-car- rier of said post-office, before it had been delivered to the person to whom it was then and there directed, and which said letter was then and there directed to E. H., street,. , , and the said L. H. did then and there unlaw- fully secrete and destroy the same, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States of America. Second Count. And the grand jurors aforesaid, upon their oaths and affirmations aforesaid, do further present that L. H., on, to wit, the day of , in the year of our Lord one thousand eight hundred and , in the county of , in the state of , and within the circuit and district afore- said, and within the jurisdiction of this court, did then and there knowingly obtain by deception, from a person having the custody thereof, to wit, one C. M., a letter containing an article of value, which said letter had been in the post-office of the United States, to wit, the post-office at , for delivery to one E. H., and which said letter then and there contained pecuniary obligations of the government of the United States of the denomination and value of dollars, and which said letter was then and there directed to E. H., street, , , and he, the said L. H., did then and there unlawfully and feloniously embezzle the said letter and convert the same to his own use before its delivery to the person to whom it was directed, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States of America. J- H., United States Attorney. A true bill. H. B., Foreman. Taken from the record in U. S. vs. Lewis Montgomery, alias James Montgomery, and sustained in the District Court of the United States for the Southern District of Ohio. INDICTMENTS IN SPECIAL CASES. II45 No. 894. "Embezzlement of Letters (i) (R. S., Sec. 5467). The United States of America, ^ District of , ss. In the District Court of the United States, within and for the District of , in the Judicial Circuit, of the Term of , in the year of our Lord one thou- sand eight hundred and . The grand jurors of the United States of America, duly- empaneled, sworn, and charged to inquire within and for the district of , upon their oaths and affirmations, pre- sent that L/. H., on, to wit, the day of , in the year of our lyord one thousand eight hundred and ■ , in the county of , in the state of , in the circuit and dis- trict aforesaid, and within the jurisdiction of this court, be- ing then and there a person employed in the postal service of the United States, to wit, as a letter-carrier of the post- office at , , and a certain letter having come into his possession as such letter-carrier, and which was intended to be delivered from said post-office, and which said letter had been in the mails of the United States, did, then and there, unlawfully and feloniously, embezzle and convert to his own use said letter, and which said letter then and there con- tained three pecuniary obligations of the United States, each one of the denomination and value of one dollar, and of the total value of three dollars, which said letter was then and there inclosed in an envelope and directed to M. C, No. street, care of E. F., , . And the grand jurors aforesaid, upon their oaths and affirmations aforesaid, do further present that the said L. H., letter-carrier as aforesaid did then and there, unlawfully and feloniously, embezzle and convert to his own use said letter and its contents, with in- tent to defraud, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States of America. 1 146 CRIMINAL PROCEEDINGS. Second Count. And the grand jurors aforesaid, upon their oaths and affirmations aforesaid, do further present that L,. H., on, to wit, the day of , in the year of our Lord one thousand eight hundred and , in the county of , in the state of , in the circuit and district aforesaid, and within the jurisdiction of this court, being then and there a person employed in the postal service of the United States, to wit, as a letter-carrier of the post-office at , , and a certain letter having come into his possession as such let- ter-carrier, and which was intended to be conveyed by mail, and which said letter was inclosed in an envelope and directed to M. C, No. street, care of E. F., , , and which said letter then and there contained obligations of the United States of the value of $ ; and •he, the said L. H., as aforesaid, did then and there, unlaw- fully and feloniously, steal and take out of said letter, which had come into his possession as aforesaid, and which was in- tended to be delivered by the post-office, the said sum of three dollars, pecuniary obligations of the United States, as afore- said, the said money not being owned by the said L. H. be- fore the delivery of said letter to the person to whom it was directed, and with intent then and there to defraud, contrary to the form of the statute in such case made and provided,, and against the peace and dignity of the United States of America. J. H., United States Attorney. A true bill. H. B., Foreman. (I) Taken from the record in U. S. vs. Orin E. Sparks, and sustained in the District Court of the United States for the Southern District of Ohio. ■ INDICTMENTS IN SPECIAL CASES. 1 147 No. 895. Embezzling Money Order and Postal Funds (i) (R. S., Sees. 4046 and 4053). The United States of America, -^ District of , ss. In the District Court of the United States, within and for the District of , in the Judicial Circuit, of the Term of , in the year of our Lord one thousand eight hundred and . Pirs^ Count. The grand jurors of the United States of America, duly empaneled, sworn, and charged to inquire within and for the said district, upon their oaths and affirm- ations, present that L. H., on, to wit, the day of , in the year of our Lord one thousand eight hundred and , in the county of , in the state of , in the cir- cuit and district aforesaid, and within the jurisdiction of this court, being then and there the postmaster at , county of , state of , and then and there connected with the business and operation of the money-order office at , county of , state of , as aforesaid, did then and there, unlawfully and knowingly, convert to his own use and embezzle a certain portion of the money-order funds of the United States, to wit, the sum of dollars, which said money-order funds came into his possession as such postmaster and person connected with the business and oper- ations of the money-order office as aforesaid, and the embez- zlement and conversion to his own use of said funds as aforesaid, being then and there contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States of America. Second Count. And the grand jurors aforesaid, upon their oaths and affirmations aforesaid, do further present that L. H., on, to wit, the day of , in the year of our Lord one thousand eight hundred and , in the county of , in the state of , in the circuit and district aforesaid, and 1 148 .CRIMINAL PROCEEDINGS. within the^urisdiction of this court, being then and there the postmaster at , county of , state of , and as such postmaster having the temporary custody of money, which, by law, is a part of the postal revenue of the United States, did then and there unlawfully convert to his own use, and did then and there knowingly and willfully neglect to de- posit the same, to wit, the sum of dollars, postal revenue of the United States as aforesaid, in the treasury of the United States, or in some lawfully authorized depository of such revenues of the United States, the unlawful conversion to his own use, as aforesaid, by him, the said I/. H., and his knowingly and willfully neglecting to deposit said postal revenues as aforesaid, being then and there contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States of America. J. H., A true bill. United States Attorney. H. B., Foreman. (i) Taken from the record in the U. S. vs. Aaron G. Albaugh, and sustained in the District Court of the United States for the Southern District of Ohio. No. 896. Stealing Personal Property of the United States (i) (R. S., Sec, 5456). The United States of America, ^^ District of , ss. In the District Court of the United States, within and for the District of , in the Judicial Circuit, of the Term of , in the year of our Lord one thousand eight hundred and . The. grand jurors of the United States of America, duly empaneled, sworn, and charged to inquire within and for the said district, upon their oaths and affirmations, present that L,. H., on, to wit, the day of , in the year of our Lord one thousand eight hundred and , in the county of , in the state of , in the circuit and district afore- INDICTMENTS IN SPECIAL CASES. 1 149 said, and within the jurisdiction of this court, did, then and there, unlawfully and feloniously, take and carry away from another, to wit, from R. K., then and there the postmaster at , county, in the state of , personal property belonging to the United States, of the value of eleven dollars, and which said personal property then and there consisted of an obligation of the United States, to wit, an United States treasury certificate of the value of ten silver dollars and one dollar in silver coin, issued and coined by the mints of the United States, of the value of one dollar, and which said personal property, as aforesaid, was then and there apart of the postal revenues and money-order funds of the post-of&ce department of the United States, the felonious taking and ■carrying away of the same by him, the said L. H., with in- tent then, there, and thereby to defraud, being then and there contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States of America. J. H., A true bill, United States Attorney. H. B., Foreman. (i) Taken from the record of the U. S. vs. William J. Burns, and sus- tained in the District Court of the United States for the Southern Dis- trict of Ohio. No. 897. Falsely Personating Another in Violation of R. S., Sec. 5435 (i). The United States of America, t.., T^- ■ r No. . District of , ss. In the District Court of the United States, within and for the District of , in the Judicial Circuit, of the Term of , in the year of our Lord one thousand eight hundred and ^ . The grand jurors of the United States of America, duly •empaneled, sworn, and charged to inquire within and for the 1 150 CRIMINAL PROCEEDINGS. said district, upon their oaths and affirmations, present that L. H., > on, to wit, the day of , in the year of our Ivord one thousand eight hundred and , in the county of , in the state of , in the circuit and district afore- said, and within the jurisdiction of this court, did then and there unlawfully, knowingly, and falsely personate and rep- resent a person entitled to certain wages from the United States, and under color of such false personation receive the money of a person really entitled to receive said wages, in this, to wit, that he, the said L,. H., at the time and place aforesaid, did then and there knowingly, unlawfully, and falsely personate and represent himself to be one W. B., late private Company M, United States Cavalry ; he, the said W. B., as aforesaid, being then and there the person really entitled to receive said wages from the United States, to wit, the sum of dollars, as extra duty pay for services as nurse in a hospital ; and he, the said L. H., did then and there, under color of such false personation, to wit, as being W. B., receive the said sum of dollars, wages as afore- said due to the said W. B. as aforesaid ; he, the said L. H., having no right, authority, or power to personate and repre- sent the said W. B., and to receive the said wages as afore- said, as he, the said L. H., then and there well knew, and in- tending then, there, and thereby to defraud the said W. B., contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States of America. Second. And the grand jurors aforesaid, upon their oaths and affirmations aforesaid, do further present that L. H. on, to wit, the day of , 18 — , in the county of , in the state of , and the district aforesaid, did then and there unlawfully, knowingly, and falsely personate and repre- sent a person entitled to certain wages from the United States, and, under color of such false personation, endeavor to receive the money of a person really entitled to receive the said wages in tihis, to wit, that he, the said L. H., did then INDICTMENTS IN SPECIAL CASES. HS^ and there sign a certain receipt and voucher with the name of W. B., late private Company M, United States Cav- alry, which said voucher and receipt is in the words and fig- ures following, to wit; [sei forth in full the voucher], he, the said W. B., being then and there the person really entitled to said wages from the United States, to wit, the sum of dollars, as extra-duty pay as such private in Company M, Regiment United States Cavalry; and he, the said L. H., did then and there, under color of such false personation, to wit, as W. B., endeavor to receive and obtain the said sum of dollars, wages and extra-duty pay, as aforesaid, to the said W. B., he, the said Iv. H., having no right, authority, or power to personate and represent the said W. B. as aforesaid, or to receive the said wages as aforesaid, as he, the said L. H., then and there well knew; he, the said 'L,. H., intending then, there, and thereby to defraud the said W. B., contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States of America. J. H., A true bill. United States Attorney. H. B., Foreman. (i) Taken from tlie record in the U. S. vs. Adrian I. Jones, and sus- tained in the District Court of the United States for the Southern Dis- trict of Ohio. No. 898. Falsely Personating an Officer of the United States (i) (Act of April i8, 1884). The United States of America, j^^ District of . In the District Court of the United States, within and for the District of , in the Judicial Circuit, of the Term of , in the year of our Ivord one thousand eight hundred and . First Count. The Grand Jurors of the United States of America, duly empaneled, sworn, and charged to inquire 1 152 CRIMINAL PROCEEDINGS. within and for the said district, upon their oaths and affirma- tions, present that L. H., on, to wit, the day of , in the year of our Lord one thousand eight hundred and , in the county of , in the state of , in the circuit and district aforesaid, and within the jurisdiction of this court, did then and there unlawfully and feloniously, and with intent to defraud one T. M., falsely assume and pretend to be an employee acting under the authority of an officer of the government of the United States, to wit, a civil surgeon and medical examiner duly appointed by the commissioner of pensions to make the periodical examinations of pension- ers which are or may be required by law, and to examine applicants for pensions in regard to their disabilities, and the said ly. H. did then and there in such pretended character, as aforesaid, take upon himself to act as such medical exam- iner and civil surgeon, and did then and there examine the said T. M. upon his bodily ailments and diseases ; he, the said T. M., being an applicant for a pension under the laws of the United States. And the grand jurors aforesaid do further present that he, the said L. H., was not then and there an employee acting under the authority of an officer of the government, to wit, medical examiner and civil surgeon appointed by the com- missioner of pensions, as he, the said L. H., then and there well knew, and he, the said L. H., intending then, there, and thereby to defraud the said T. M^ contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States of America. Second Count. And the grand jurors aforesaid, on their oaths and affirmations aforesaid, do further present that L. H., on, to wit, the day of , in the year of our Lord one thousand eight hundred and , in the county of , in the state of , in the circuit and district aforesaid, and within the jurisdiction of this court, did then and there un- lawfully, and feloniously, and with intent to defraud one T. M., pretend and falsely assume to be an employee acting INDICTMENTS IN SPECIAL CASES. 1 1 S3 under the authority of an officer of the government of the United States, to wit, a civil surgeon and medical examiner, duly appointed by the commissioner of pensions to make the periodical examinations of pensioners which are or may be required by law, and also to examine applicants for pensions in regard to their disabilities, and the said h. H. did then and there in such pretended character as aforesaid receive from the said T. M. certain valuable things, to wit, meals, food and lodging; he, the said T. M., being then and there an applicant for a pension under the laws of the United States, and then and there believing the said L. H. to be the medical examiner and employee acting under the authority of the commissioner of pensions. And the grand jurors aforesaid, upon their oaths and affirmations aforesaid, do further present that he, the said L. H., was not then and there an employee acting under the authority of an officer of the government, to wit, medical examiner and civil surgeon appointed by the commissioner of pensions, as he, the said L. H., then and there well knew, and he, the said L. H., then, there, and thereby intending to defraud the said T. M., contrary to the form of the statute in such case made and provided, and against the peace and dig- nity of the United States of America. J. H., A true bill. United States Attorney. H. B., Foreman. (i) Taken from the record in U. S. vs. George L. Fairbanks, and sustained in the District Court of the United States for the Southern District of Ohio. 1 1 54 CRIMINAL PROCEEDINGS. No. 899. Making and Presenting False Claim for Pension, etc. (i) (R. S., Sec. 5438.) The United States of America, District of , ss. In the District Court of the United States, within and for the District of , in the Judicial Circuit, of the Term of , in the year of our Lord one thousand eight hundred and . The grand jurors of the United States of America, duly empaneled, sworn, and charged to inquire within and for the district of , upon their oaths and affirmations, pre- sent that L. H., alias A. C, on, to wit, the day of , in the year of our Lord one thousand eight hundred and , in the county of , state of , in the circuit and district aforesaid, and within the jurisdiction of this court, did then and there unlawfully make and cause to be made a certain claim upon the government of the United States, to wit, a claim to be placed on the pension rolls of the United States under the provisions of an act of congress approved June 27, 1890, as being the identical A. C, who was enrolled on the day of , 18 — , in Company A, Regiment, Massachusetts Colored Troops, as a private in the service of the United States in the war of the rebel- lion, and who served at least ninety days, and was honorably discharged therefrom, and who was partially unable to . earn a support by manual labor by reason of two wounds by shells, and other disabilities, and knowing such claim to be false, fraudulent, and fictitious, and which said false, fraudulent, and fictitious claim is in the words and figures following, to wit: [sel ou^ the claim in full\ the said claim being false, fraudulent, and fictitious in this, to wit, that the said L. H. was not the identical A. C. who was enrolled on the day of , 18 — , in Company A, Regiment, Massa- chusetts United States Colored Troops as a private in the service of the United States in the war of the rebellion, as set INDICTMENTS IN SPECIAL CASES. 1 155 forth in said declaration for invalid pension, as he, the said L. H., then and there well knew, and he, the said Lt. H., intend- ing then, there, and thereby to defraud the United States, contrary to the form of the statute in such case made and provided, and against the peace and dignity of. the United States of America. Second Count. And the grand jurors aforesaid, upon their oaths and affirmations aforesaid, do further present that L. H., alias A. C, on, to wit, the day of , in the year of our Lord one thousand eight hundred and , in the county of , in the state of , in the circuit and district aforesaid, and within the jurisdiction of this court, having heretofore presented, and caused to be presented, for approval and pay- ment to an officer in the civil service of the United States, to wit, to the commissioner of pensions, a person duly authorized by law to approve the same, a certain claim against the gov- ernment of the United States, to wit, a claim for invalid pen- sion under the provisions of an act of congress approved June 27, 1890, a claim to be placed on the pension rolls of the United States, and setting forth in substance in said claim that he was the identical A. C. who was enrolled on the day of , 18 — , in Company A, Regiment, Massa- chusetts Colored Troops, as a private in the service of the United States in the war of the rebellion, and served at least ninety days, and was honorably discharged therefrom, and that he was partially unable to earn a support by man- ual labor by reason of two wounds by shells, and other disa- bilities, did then and there knowingly and unlawfully, and for the purpose of obtaining and aiding to obtain the ap- proval of said claim, knowing it to be false and fraudulent, make a certain false deposition, which said deposition, sub- scribed to by said L. H., alias A. C, and taken and sworn to before A. R., a special examiner of the pension bureau of the United States, a person duly authorized by law to take the same, and wherein the law authorizes a deposition to be taken, and which said deposition contained the following Statements, to wit: " During the late war I served as a mem- 1 1 56 CRIMINAL PROCEEDINGS. ber of Company A, Massachusetts Infantry." " I claim a pension on account of wounds on my right arm, and several wounds on my head, received at , , on the day of ,1864." "I assumed the name of A. C. when I joined the Massachusetts." " While I lived in county, I was known by the name of L. H." And the said deposition was false and fraudulent in this, to wit, that the said L. H., alias A. C, did not serve as a mem- ber of Company A, Massachusetts Infantry, and was not wounded on his head at , , and did not assume the name of A. C, and did not join the Massachusetts Infantry, as stated in his said deposition, as he then and there well knew ; he, the said L,- H., alias A. C, then and there well knowing said claim to be false, fraudulent, and fictitious, and then and there well knowing said deposition made in support of said claim to be false, fraudulent, and fictitious, and intending then, and there, and thereby to defraud the United States contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States. Third Count. And the grand jurors aforesaid, upon their oaths and affirmations aforesaid, do further present that L. H., alias A. C, on, to wit, the day of , in the year of our Lord one thousand eight hundred and , in the county of , in the state of , in the circuit and district afore- said, and within the jurisdiction of this court, did then and there unlawfully cause to be presented for payment and ap- proval to an officer in the civil service of the United States, to wit, the commissioner of pensions, a person duly author- ized by the United States to approve claims for pensions, a certain claim upon the government of the United States under the provisions of an act of congress approved June 27, 1890, as being the identical A. C. who was enrolled on the day of , 18 — , in Company A, Regiment Massachu- setts Colored Troops, as a private in the service of the United States in the war of the rebellion, and who served at least INDICTMENTS IN SPECIAL CASES. 1 157 ninety days, and was honorably discharged, and who was par- tially unable to earn a support by manual labor by reason of two wounds by shells, and other disabilities, knowing such claim to be false, fraudulent, and fictitious, and which said false, fraudulent, and fictitious claim is in the words and figures following, to wit, [sei out the claim infull\ The said claim being false, fraudulent, and fictitious in this, to wit, that he, the said L. H., was not the identical A. C. who was enrolled on the day of , i8 — , in Com- pany A, Regiment Massachusetts United States Colored Troops, as a private in the service of the United States in the war of the rebellion, as set forth in said declaration for invalid pension, as he, the said ly. H., as aforesaid, then and there well knew, and he, the said L. H., alias A. C, intend- ing then, there, and thereby to defraud the United States, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States of America. J- H., A true bill. United States Attorney. H. B., Foreman. (i) Taken from the record in U. S. vs. Jacob Warren, and sustained by the District Court of the United States for the Southern District of Ohio. No. 900. Demanding Illegal Fees of Pensioner in Violation of Re- vised Statutes, Section 5485, as amended July 4, 1884 (i). The United States of America, ^ District of , ss. In the District Court of the United States, within and for the District of , in the Judicial Circuit of the Term of , in the year of our Lord one thousand eight hundred and . The grand jurors of the United States of America, duly empaneled, sworn, and charged to inquire within and for the 1 158 CRIMINAL PROCEEDINGS. said district, upon their oaths and affirmations, present that L. H., on, to wit, the — day of , in the year of our Lord one thousand eight hundred and , in the county of , in the state of , in the circuit and district aforesaid, and within the jurisdiction of this court, being then and there a person instrumental in prosecuting a claim for pension of one R. L. from the United States, did then and there unlawfully and knowingly demand from the said R. L. as and for his, the said ly. H., compensation for his services and instrumen- tality in prosecuting said claim for a pension from the United States, a sum of money greater than and exceeding the amount provided and allowed therefor by law, to wit, a sum of money greater than and exceeding the sum of ten dollars, the amount of compensation then and there , provided and allowed by law therefor, there being then and there no agree- ment of the said R. L. with the said L. H. filed with the commissioner of pensions touching and concerning the fees of the said Iv. H. in said claim, to wit, the sum of twenty-five dollars, the demand then and there by him, the said L,. H., as aforesaid, of the said sum of twenty-five dollars as aforesaid, being then and there contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States of America. J. H., United States Attorney. A true bill. H. B., Foreman. (i) Taken from the record of the U. S. vs. 1. 1. Mitchell, and sustained in the District Court of the United States for the Southern District of Ohio. INDICTMENTS IN SPECIAL CASES. 1 159 No. 901. Forgery — Violation of R. S., Sections 5414, 5421 and 5431 (i)- Tlie United States of America, ^^ District of , ss. In the District Court of the United States, within and for the District of , in the Judicial Circuit, of the Term of , in the year of our Lord one thousand . eight hundred and . The grand jurors of the United States of America duly empaneled, sworn, and charged to inquire within and for the said district, upon their oaths' and affirmations, present that L. H., on, to wit, the day of , in the year of our Lord one thousand eight hundred and , in the. county of , in the state of , in the circuit and dis- trict aforesaid, and within the jurisdiction of this court, did then and there unlawfully, feloniously, and falsely make and forge a certain obligation of theUnited States, to wit: a draft for money, to wit : the sum of ninety-four dollars, drawn by an authorized officer of the United States, to wit : D. L-, major and paymaster of the United States army, upon the assistant treasurer of the United States at New York, and which said and falsely-made and forged obligation of the United States is in the words and figures following: \here set forth in full the forged instrument], and on the back of which said falsely- made obligation of the United States as aforesaid, were en- dorse^ the words and figures following, to wit : [here set forth in full the endorsement]. And the grand jurors aforesaid, upon their oaths and affir- mations aforesaid, do further present that the said L. H. did then and there falsely make and forge the said obligation of the United States in this, to wit: that the said L. H. did then and there falsely make and forge the name of the payee, to wit: the words W. B., with intent then, and there, and thereby to defraud, contrary to the form of the statute in such Il60 CRIMINAL PROCEEDINGS. case made and provided, and against the peace and dignity of the United States of America. J. H., United States Attorney. A true bill, H. B., Foreman. (i) Taken from the record of the U. S. vs. Adriarn I. Jones, and sus- tained in the District Court of the United States for the Southern District of Ohio. No. 902. Forging Endorsement upon Money Order (i) (R. S., Sec. 5463, as amended June iSth, 1888). The United States of America, -j^ District of , ss. In the District Court of the United States, within and for the District of , in the Judicial Circuit, of the Term of , in the year of our Lord one thousand eight hundred and . The grand jurors of the United States of America, duly empaneled, sworn, and charged to inquire within and for the said district, upon their oaths and affirmations, present that, L. H., on, to wit, the day of , in the year of our Lord one thousand eight hundred and , in the county of , in the state of , in the circuit and district aforesaid, and within the jurisdiction of this court, did, with intent to de- fraud, falsely forge and counterfeit a material signature and endorsement upon a certain money-order, issued under the direction of the post-office department of the United States, to wit, by the postmaster at , , and which said money-order was payable in the United States at , , to one T. H., and which said money-order, with its forged and counterfeit signature and endorsement, is in the following words and figures to wit : [^here set forth in full the order]. He, the said L. H., intending then, and there, and thereby to defraud, contrary to the form of the statute in such case INDICTMENTS IN SPECIAL CASES. II61 made and provided, and against the peace and dignity of the United States of America. J. H., United States Attorney. A true bill. H. B., Foreman. (i) Taken from the record of the U. S. vs. Daniel Hogan, and sus- tained in the District Court of the United States for the Southern Dis- trict of Ohio. No. 903. Indictment for Perjury (i) (R. S., Sec. 5392). The United States of America, „ District of , ss. In the Circuit Court of the United States, within and for the District of , in the Judicial Circuit, of the Term of , in the year of our Lord one thousand eight hundred and . The grand jurors of the United States of America, duly empaneled, sworn, and charged to inquire within and for the said district, upon their oaths and aifirmations, present that L. H., on, to wit, the day of , in the year of our lyord one thousand eight hundred and , in the county of , in the state of , in the circuit and district afore- said, and within the jurisdiction of this court, being then clerk of the circuit and district courts of the United States for the district of , did then and there appear in his own proper person before J. S., the judge of the district court of the United States for the district of , and did take an oath before said judge that a certain written declara- tion by him subscribed was true, which said declaration was of the tenor and effect following, to wit, \set forthjhe decla- ration in fuU\. And so the grand jurors aforesaid, on their oaths and affirmations aforesaid, present that he, the said L,. H., hav- ing taken the said oath before the said officer, who was Il62 CRIMINAL PROCEEDINGS. competent to administer the same, that said within declar- ation by him so subscribed, as aforesaid, was true, willfully and contrary to said oath did then and there unlawfully subscribe said matters heretofore set forth, which were mate- rial, and which he did not believe to be true, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States of America. Second. And the grand jurors aforesaid, upon their oaths and affirmations aforesaid, do further present that L. H., on, to wit, the day of , in the year of our Lord one thousand eight hundred and , in the county of , in the state of , in the circuit and district aforesaid, and within the jurisdiction of this court, being the clerk of the circuit and district courts of the United States for the district of , did then and there make a written return to the attorney general of the United States, in the form pre- scribed by him, for the half year ending on the day of , thereto preceding, of all the fees and emoluments of his said office of every name and character, and of all the necessary expenses of his office for such last half year, and did then and there appear in his own proper person before J. S., the judge of the district court of the United States for the district of , and did take and subscribe an oath before the said judge, who had competent authority to administer the same, of the tenor and effisct following, to wit, \set forth the return infull\^ which said return so sworn to by the said L. H., as aforesaid, contained among other things the following account of his fees and emoluments as clerk of said courts during the said half of the year, to wit, \set forth account in full'\; when in truth and in fact the said account was not in all respects just and true accord- ing to his best knowledge and belief, and in truth and in fact he had received directly and indirectly other money than therein stated, to wit, more than dollars as fees and emoluments earned from individuals in the district court, INDICTMENTS IN SPECIAL CASES. 1 1 63 more than dollars as fees and emoluments earned from individuals in cases in bankruptcy in the district court, and more than dollars as fees and emoluments earned from individuals in the circuit court ; and in truth and in fact he was entitled to emoluments for the period therein men- tioned other than those therein specified, to wit, more than dollars as fees and emoluments earned from individ- uals in the district court, a large amount earned from indi- viduals in cases in bankruptcy in the district court, and more than dollars as fees and emoluments earned from indi- viduals in the circuit court; and in truth and in fact the total gross emoluments earned by him during the said period were more than dollars, all of which he, the said L. H., then and there well knew. And so the grand jurors aforesaid, upon their oaths and affirmations aforesaid, present that the said L. H., having taken the said oath before said officer, who was competent to administer the same, that said written declaration by him so subscribed as aforesaid was true, willfully and contrary to said oath, did then and there unlawfully subscribe said mat- ters hereinbefore set forth, which were material, and which he did not believe to be true, contrary to the form of the statute in such case made and provided, and against the peace any dignity of the United States of America. Third. And the grand jurors aforesaid, upon their oaths and affirmations aforesaid, do further present that h. H., on, to wit, the day of , in the year of our Lord one thousand eight hundred and , in the county of , in the state of , in the circuit and district aforesaid, and within the jurisdiction of this court, being the clerk of the circuit and district courts of the United States for the district of , did then and there make a written return to the attorney general of the United States, in the form pre- scribed by him for the half year ending on the day of , heretofore preceding, of all the fees and emoluments of his said office of every name and character, and of all the 1 164 CRIMINAL PROCEEDINGS. necessary expenses of his office for such last half year, and did then and there appear in his own proper person before J. S., the judge of the district court of the United States, for the district of , and did take and subscribe an oath before said judge, who had competent authority to ad- minister the same, of the tenor and effect following, to wit, [sei forth oath infull'\ , which said written return so sworn to by the said L. H., as aforesaid, contained the following account of his fees and emoluments as clerk of said courts during the said half year, to wit, \here set forth the account infull\ when in truth and in fact, the said account was not in all respects just and true according to his best knowledge and belief, and in truth and in fact, he had received directly and indirectly, other money than as therein stated, to wit, more than dollars as fees and emoluments earned from individuals in the district court, more than dollars as fees and emoluments earned from individuals in cases of bankruptcy, and more than dollars as fees and emolu- ments earned from individuals in the circuit court ; and in truth and in fact, he was entitled to emoluments for the period therein mentioned other than those therein specified, to wit, more than dollars as fees and emoluments earned from individuals in the district court, a large amount earned from individuals as fees and emoluments in cases of bank- ruptcy in the district court, and more than dollars as fees and emoluments earned from individuals in the circuit court ; and in truth and in fact, the total gross emoluments earned by him during the said period were more than dollars, all of which he, the said L. H., then and there well knew, and so the grand jurors aforesaid, on their oaths and affirmations aforesaid, present that the said L. H., having taken the said oath before the said officer, who was compe- tent to administer the same, that the said written declara- tion by him so subscribed as aforesaid was true, willfully and contrary to said oath, did then and there unlawfully sub- scribe said matters hereinbefore set forth, which were mate- INDICTMENTS IN SPECIAL CASES. 1 1 65 rial, and which he did not believe to be true, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States of America. Fourth. And the grand jurors aforesaid, upon their oaths and affirmations aforesaid, do further present that L. H., on, to wit, the day of , in the county of , in the state of , in the circuit and district aforesaid, and within the jurisdiction of this court, being the clerk of the circuit and district courts of the United States for the district of , and having made in writing an account against the government of the United States for service performed by him as clerk of said courts during the last half of the year eighteen hundred and — — , did then appear in his own proper person before J. S., the judge of the district court of the United States for the district of , and take and subscribe an oath before said judge, who had competent authority to administer the same, of the tenor and effect fol- lowing, to wit : L. H., being duly sworn, says that the services charged in the foregoing account have been actually and necessarily performed as therein stated, which said account, with the aforesaid oath attached thereto, was thereupon presented to the circuit court of the United States for the district of , and said account was, by said oath thereto attached, proved to the satisfaction of the court ; and the said court thereupon caused to be entered of record an order approving the said account, and the said account so approved was for- warded to the proper accounting officer of the treasury, to wit, the first auditor of the treasury, which said account, so sworn to by the said L. H. as aforesaid, including services for recording the proceedings of the circuit court of the United States in certain cases theretofore pending therein, wherein the United States was a party, to wit \set forth the names of all the cases\ , when, in truth and in fact, the said services had not been actually performed, the proceedings of Il66 CRIMINAL PROCEEDINGS. the circuit court in said cases not having been recorded, as the said L. H. then and there well knew. And so the grand jurors aforesaid, upon their oaths and affirmations aforesaid, present that the said L,. H., having taken the said oath before the said officer, who was compe- tent to administer the same, that said written certificate by him so subscribed as aforesaid was true, willfully, and con- trary to said oath, did then and there unlawfully subscribe said matters hereintofore set forth, which were material, and which he did not believe to be true, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States of America. J.H., A true bill. United States Attorney. H. B., Foreman. (i) Taken from the record in the U. S. w. Thomas Ambrose. See U. S. vs. Ambrose, io8 U. S., 336. No. 904, Making Counterfeit Coin (i) (Act of July 10, 1891). The United States of America, ,, ^. . - No. . Distnct of , ss. In the District Court of the United States, within and for the District of , in the Judicial Circuit, of the Term of , in the year of our Lord one thou- sand eight hundred and . jFzr^i Count. The grand jurors of the United ' States of America, duly empaneled, sworn, and charged to inquire within and for the said district, upon their oaths and affirma- tions, present that L. H., on, to wit, the day of , in the year of our L,ord one thousand eight hundred and , in the county of , in the state of , in the circuit and district aforesaid, and within the jurisdiction of this court, did then and there unlawfully, knowingly, and feloniously INDICTMENTS IN SPECIAL CASES. II67 have in his possession, without authority from the secretary of the treasury of the United States, or other proper officer, certain, to wit, six moulds of plaster and other substance in likeness and similitude as to the design and inscription upon said moulds of the design and inscription upon the dies, hubs, and moulds designated for the coining and making of the genuine silver and nickle coin, to wit, quarter dollars, dimes, and five-cent pieces of the United States that have been coined at the mints of the United States, with intent then and there to fraudulently and unlawfully use the same in molding and coining counterfeit quarter dollars, dimes, and five-cent pieces in the similitude of the silver quarter dollars, dimes, and nickle and copper five-cent coins coined at the mints of the United States, with intent then, there, and thereby to defraud, contrary to the form of the statute in such case made and provided, and against the peace and dig- nity of the United States of America. Second Count. And the grand jurors aforesaid, upon theit oaths and affirmations aforesaid, do further present that the said Iv. H., on, to wit, the day of , in the year of our Lord one thousand eight hundred and , in the county of , in the state of , in the circuit and dis- trict aforesaid, and within the jurisdiction of this court, did then and there unlawfully, knowingly, feloniously, and falsely make and forge a large number, to wit, twenty false-forged and counterfeit coins in the likeness and similitude of the true and genuine silver quarter dollars and dimes coined at the mints of the United States, with intent to utter the same as true and genuine, and with intent then, and there, and thereby to defraud, contrary to the form of the statute in such case made and provided, and against the peace and dig- nity of the United States of America. J. H., A true bill. United States Attorney. H. B., Foreman. (i) Taken from the record in U. S. vs. Richard Reeve, and sustained in the District Court of the United States for the Southern District of Ohio. Il68 CRIMINAL PROCEEDINGS. No. 905, Indictment under Bankruptcy Act of i8g8. The District Court of the United States, ■-■ District of . United States of America, District of , ss. In the District Court of the United States for the Judicial Circuit and District of , held at , , October term, in the year of our Lord nineteen hundred and . First Count. The grand jurors of the United States of America, impaneled and sworn, and charged to inquire in and for the district of , on their oaths present, that W. T. did on the day of , nineteen hundred and , in the district aforesaid and within the jurisdiction of this court, unlawfully, knowingly and fraudulently receive a material part of the money and personal property of E. B., to wit, the sum of dollars in lawful money of the United States, which was then and there paid to the said W. T. by H. S. — a more particular description thereof is to the grand jurors aforesaid unknown; a certain check drawn by F. T. on the Southern National Bank, of , , in favor of E. B. & Co., for dollars, dated , and numbered 78, with the fraudu- lent intent on the part of the said W. T. to defeat the provi- sions of an Act of the Congress of the United States, entitled, " An Act to establish a uniform system of bankruptcy through- out the United States," approved July i, 1898, and that said money, personal property and check were then and there per- sonal property of the said E. B., as the said W. T. then and there knew — and that a petition then and there seeking to have the said E. B. adjudged a bankrupt had been then and there filed in the office of B. R., who was then and there duly appointed, qualified and acting clerk of the District Court of the United States for the district aforesaid, at , where the said E. B. had then resided and had his domicile for more than six months, by the A. B., E. B. Bros. & Co. and INDICTMENTS IN SPECIAL CASES. I169 the 1st National Bank, as the said W. T. then and there knew and that the said E. B. was then and there insolvent and bank- rupt as the said W. T. then and there knew. Against the peace and dignity of the United States and contrary to the form of the statute in such case made and provided. J. H., United States Attorney. Second Count. And the grand jurors aforesaid, upon their oaths aforesaid, do further present, that W. T., did on day of , in the district aforesaid and within the jurisdiction of this court, unlawfully, knowingly and fraudulently, while E. B. was a bankrupt aid, abet and assist the said E. B. in concealing, and did then and there unlawfully, knowingly and fraudulently while the said E. B. was a bankrupt, procure the said E. B. to conceal a large amount of his, the said E. B.'s personal property, to wit, the sum of dollars, lawful money of the United States, which was then and there paid to the said W. T. by H. S., a more particular description whereof is to the grand jurors afore- said unknown, from A. E., who was then and there the duly appointed, qualified and acting receiver and trustee of the estate of the said E. B. in bankruptcy, and the said E. B. then and there was and had then and there been adjudged a bankrupt, as the said W. T. then and there knew, by the District Court of the United States at , in the District Court aforesaid, where the said E. B. had then resided and had his domicile for more than six months and the personal prop- erty aforesaid was then and there the personal property of the said E. B. and then and there belonged to his said estate in bankruptcy, as the said W. T. then and there knew. Against the peace and dignity of the United States and con- trary to the form of the statute in such case made and provided. J. H., United States Attorney. A true bill. H. B., Foreman. 1 170 CRIMINAL PROCEEDINGS. No. 905a. Indictment for Making Contract in Restraint of Trade and Commerce Under Act of July 2, 1890. (Sherman Act.) The United States of America, District of , ss. Court of the United States for the Division of said District, Term, A. D. 19—. The grand jurors for the United States of America and for the district and division aforesaid, having been duly summoned, elected, empanelled, sworn and charged to inquire for the body of the district and division aforesaid. Upon their oath present that heretofore, to vi^it, oh the day of , 19 — , within the district and division aforesaid, the C. D. Co., a corporation existing under and authorized by the laws of the state of , and a resident of the city of , County ; the E. F. Co., a corporation existing under and authorized by the laws of the state of , and a resident of said state, but with its principal ofifice in the city of — , state of ; the G. H. Co., a corporation existing un- der and authorized by the laws of the state of , and a resident of the city of in said state; the I. J. Co., a corporation existing under and authorized by the laws of the state of , and a resident of the city of in said state ; the K. L. Co., a corporation existing under and authorized by the laws of the state of , and a resident of the city of in said state ; and the M. N. Co., a corporation existing and authorized by the laws of the state of , and a resident of the city of in said state, did unlawfully, knowingly, wilfully and feloniously make and enter into a certain con- tract, combination and conspiracy in restraint of the trade and commerce in cast-iron pipe, among the several states and ter- ritories of the United States, and especially and particularly in restraint of the trade and commerce in cast-iron pipe among the several states and territories of the United States as fol- INDICTMENTS IN SPECIAL CASES. H?! lows, to wit: Alabama, Arizona, California, Colorado, North Dakota, South Dakota, Florida, Georgia, Idaho, Kansas, Ken- tucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Indian Territory, North Carolina, South Carolina, New Mex- ico, Minnesota, Michigan, Tennessee, Texas, Illinois, Wyom- ing, Indiana, Ohio, Utah, Washington, Oregon, Iowa, West Virginia, Nevada, Oklahoma and Wisconsin. Said cast-iron pipe being at said date, and continuously thereafter from said date until this time, a subject of trade and commerce among the several states and territories of the United States as afore- said, by which said unlawful contract, combination, and con- spiracy, the amount of the output and production of said cast- iron pipe and the amount of the sale thereof among the several states and territories, as aforesaid, by each of said defendants, who theretofore had been engaged separately and in competi- tion each with the other, in the manufacture and sale of said cast-iron pipe among the several states and territories as afore- said, was restrained, restricted and limited to a certain amount named and fixed in and by said unlawful contract and combi- nation, and the price at which said sales should be made among said several states and territories, was fixed and settled, at an amount greater and more than the ordinary, natural and reasonable market price for said products, by the unlawful contract, combination and conspiracy aforesaid, contrary to the statutes of the United States in such cases made and pro- vided and against the peace and dignity of the United States. J- H., United States Attorney. 1 1 72 CRIMINAL PROCEEDINGS. No. 906. Passing Counterfeit Money (i) (R. S. Sec. 5431). The United States of America, t.t District of , ss. In the Circuit Court of the United States, within and for the District of , in the Judicial Circuit, of the Term of , in the year of our Lord one thousand eight hundred and . The grand jurors of the United States of America, duly empaneled, sworn, and charged to inquire within and for the said district, upon their oaths and afl&rmations, present that L. H., alias N. B., on, to wit, the day of , in the year of our Lord one thousand eight hundred and , in the county of , in the state of , in the circuit and district aforesaid, and within the jurisdiction of this court, did then and there unlawfully, knowingly, and feloniously utter, pub- lish, and pass upon H. H. a false, forged, and counterfeit obligation of the United States, to wit, an United States treasury note of the denomination of five dollars, in the resemblance and similitude of the true and genuine obliga- tions of the United States, to wit. United States treasury notes of the denomination and value of five dollars, and which said false, forged, and counterfeit obligation of the United States is of the following tenor and effect, that is to say [kere set forth in full copy ofnote\, and upon which said false, forged, and counterfeit obligation of the United States were endorsed the words and figures following, to wit [set forth endorsement in fuU\ he, the said L. H., alias N. B., then and there well knowing the same to be false, forged, and counterfeit, and intending then and there to defraud, contrary to the form of the statue in such case made and provided, and against the peace and dignity of the United States of America. A true bill. J. H., H. B., Foreman. United States Attorney. (i) Taken from the record of the U. S. vs. Nicholas Damore, and sustained in the Circuit Court of the United States for the Southern District of Ohio. INDICTMENTS IN SPECIAL CASES. 1 173 No. 907. Against a Retail Liquor Dealer Selling Liquor — For not Paying Special License Tax. The United States of America, District of ss. In the District [or, Circuit] Court of the United States, within and for the District of , in the Sixth Judicial Circuit, of the Term of , in the year of our I,ord one thousand eight hundred and ninety . The grand jurors of the United States of America, duly empaneled, sworn, and charged to inquire within and for the said district, upon their oaths and affirmations, present that L,. H., of , on, to wit, the day of , in the year of our Lord one thousand eight hundred and ninety , in the county of , in the state of Ohio, in the circuit and district aforesaid, and within the jurisdiction of this court, did then and there unlawfully carry on the business of a re- tail liquor dealer without having paid the special tax of twenty-five dollars as required by law, and the said L,. H. did then and there ofi'er for sale and sell to J. B. and to vari- various other persons whose names are to the said grand jury unknown, foreign and domestic distilled spirits, wines, and malt liquors, otherwise than as provided by law, in less quantities than five gallons at the same time, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States of America. J. H., United States Attorney. A true bill, H. B., Foreman. No. 908. Petition for Removal of Criminal Case from the State Court to United States Court. For form see under title "Removal from State Courts." 1 174 CRIMINAL PROCEEDINGS. No. 909. Criminal Information. The United States of America, District of . At the term of the United States district court for the district of , in the year of our Lord one thou- sand eight hundred and , leave of the court being first had and obtained, comes J. H., attorney for the United States ' for said district, and informs the court that, as appears from a complaint made under oath and transcript of proceedings held before J. N., a Commissioner for the circuit court of the United States for the district of , and on file in this court, and who, after examination of the charge, found that there was probable cause to hold the defendant to bail, that one L. H., on the day of , A. D. 1894, at , in said district, did then and there unlawfully retain the cer- tificate of a pensioner of the United States, to wit, one J. M., issued to him and his name, and refused to surrender the same upon the demand of the pensioner, J. M. contrary to the form of an act of Congress approved February 28, 1883, in such case made and provided, and against the peace and dignity of the United States of America. J-H., United States Attorney. INDICTMENTS IN SPECIAL CASES. 1 175 No. 910. Information against Agents of Steamship Co. for Importing Alien Contract-Labor. The District Court of the United States for the District of . United States of America, District of , ss. The United States of America, Plaintiffs, vs. C. D. & Company, a corporation organized and existing under and by virtue of the laws of the state of , De- fendant. First Count. Be it remembered, That J. H., attorney of the United States of America, for the district of , who for the said United States in this behalf prosecutes, in his own person comes here into the District Court of the said United States of America, for the district aforesaid, on this day of , and for the said United States of America gives the court here to understand and be informed, that one C. D. & Company, a corporation organized and existing under and by virtue of the laws of the state of , on the day of , A. D. , within the district aforesaid, was the agent of the steamship "Doric," a vessel plying between the state of California and the empire of Japan ; and on said day of , A. D. , in said district, did refuse to receive back on board of said vessel " Doric " one Tatsugoro Mura- moto, a Japanese immigrant then and there unlawfully in the United States of America, and who lately before then, to wit, on the day of , A. D. , did unlawfully come to the United States, to wit, to the port of , in said district, on said vessel ; contrary to the form of the statute in such case made and provided, to wit, section lo of an Act of Congress of the United States of America, entitled : " An Act in amendment of the various acts relative to immigrants and 1 1 76 CRIMINAL PROCEEDINGS. the importation of aliens under contract or agreement to per- form labor; " approved March 3, 1891 ; and against the peace and dignity of the said United States of America. Second Count. And the said attorney of the United States, who prosecutes as aforesaid for the said United States, further gives the court here to understand and be informed that the said C. D. & Company, a corporation organized and existing under and by virtue of the laws of the state of , on the day of , A. D. , within the district aforesaid, was the agent of the steamship " Doric," a vessel plying be- tweeen the state of California and empire of Japan ; and on said day of , A. D. , in said district, did refuse to detain on board said vessel " Doric " one Tatsugoro Mura- moto, a Japanese immigrant, who lately before then, to wit, on the day of , A. D. , did unlawfully come to the United States of America, to wit, to the port of , in said district, on said vessel ; contrary to the form of the statute in such case made and provided, to wit, section 10 of an Act of the Congress of the United States of America, entitled : " An Act in amendment of the various Acts relative to immi- grants and the importation of aliens under contract or agree- ment to perform labor; " approved March 3, 1891 ; and against the peace and dignity of the United States of America. Third Count. And the said attorney of the said United States, who prosecutes as aforesaid, for the said United States of America, further gives the court here to understand and be informed that the said C. D. & Company, a corporation or- ganized and existing under and by virtue of the laws of the state of , on the day of , A. D. , within the district aforesaid, was the agent of the steamship " Doric," a vessel plying between the state of California and the em- pire of Japan ; and on said day of , A. D. , in said district, did refuse and neglect to return to the port from whence he came, to wit, to the port of Yokohama, in the empire of Japan, one Tatsugoro Muramoto, a Japanese immi- grant then and there unlawfully in the United States of Amer- INDICTMENTS IN SPECIAL CASES. 11/7 ica, the said Tatsugoro Muramoto having lately before then, to wit, on the day of , A. D. , unlawfully come to the United States of America, to wit, to the port of , in said district, on said vessel ; contrary to the form of the statute in such case made and provided, to wit, section lo of an Act of the Congress of the United States of America, entitled : " An Act in amendment of the various Acts relative to immigrants and the importation of aliens under contract or agreement to perform labor;" approved March 3, 1891; and against the peace and dignity of the United States of America. Whereupon, the said .attorney of the said United States, who prosecutes as aforesaid for the said United States of America, prays the consideration of the court in the premises, and that due process of law be awarded against the said C. D. & Company, a corporation organized and existing under and by virtue of the laws of the state of , in this behalf, to make it answer to the said United States of America con- cerning the premises aforesaid. J. H., United States Attorney in and for the district of . (1) Act of March 3, 1891, sec. 10, 26 Stat, at L. 1084. The District and Circuit Courts have concurrent jurisdiction of such cases, see sec. 16 of said Act. The above form was sustained and defendant convicted and fined in the case of U. S. z's. Hackfeld & Co. in the District Court of Hawaii. As to process see U. S. vs. Reed, 86 Fed. Rep. 308. 1 1 78 CRIMINAL PROCEEDINGS. PROCEEDINGS AFTER INDICTMENT. No. 911.. Capias ad Respondendum. The United States of America, District of , ss. The President of the United States of America to the Mar- shal of the District of , Greeting : We command you to take L. H., if he may be found in your bailiwick, and him safely keep, so that you have his body before the judges of the district, [or, circuit] court of the United States for the district of , at the city of , in said district, forthwith to answer unto the United States of America on an indictment for violation of Section of the Revised Statutes of the United States, presented to said court against him, the said L. H., on the day of , 1894, by the grand jury of the United States within and for the district of . Hereof fail not under the penalty of the law, and have then and there this writ. [Add teste according to the court issuing the writ. See Nos. 55 and 56.] £ro. 912. Recognizance for Appearance before the Court. The United States of America, District of , ss. Be it remembered, that on this day of , 1894, be- fore me, B. R., clerk of the district [or, circuit] court of the United States within and for the district aforesaid, duly ap- pointed as such by the said court, personally came ly. H., as PROCEEDINGS AFTER INDICTMENT. II79 principal, and E. L,. and J. P., as sureties, and jointly and severally acknowledged themselves to owe the United States of America the sum of dollars, to be levied on their goods and chattels, lands, and tenements, if default be made in the condition following, to wit : The condition of this recognizance is such that if the said L. H. shall personally appear before the district [or, circuit] court of the United States in and for the district of , at the city of , state of , from day to day, and then and there to answer unto an indictment pending therein for violation of Section of the Revised Statutes of the United States, and then and there abide the further order of said court, and not depart without leave thereof, then this recognizance to be void ; otherwise to remain in full force and virtue. L. H. [&a/.] E. L. [seal] J. P. ISeal.-] Taken and acknowledged before me the day and year as above written. B. R., [Seal.] Clerk of the District [or, Circuit] Court of the United States for the District of . [Justification of sureties as in No. 58.] No. 913. Temporary Mittimus. The United States of America, District of , ss. The United States^ No. . vs. V T ^ r Indictment for [crime charged']. The President of the United States of America to the Mar- shal of the District of , Greeting : The defendant, D. H., having been arrested on a capias ad respondendum issued upon the prcecipe of the district attorney Il8o CRIMINAL PROCEEDINGS. for said district, and having been arraigned at the bar of the district [or, circuit] court of the United States, within and for the district aforesaid, and said indictment read to him, for plea says that he is not guilty as therein and thereby charged; and being required to enter into a recognizance in the sum of dollars for his appearance before said court, from day to day, with good and sufficient security, and not' complying with the order of the court, is remanded into the custody of the marshal, to be committed to the jail of county, in the state of , until the further order of the court aforesaid. [Add teste according to the court issuiug the writ. See Nos. 55 and 56.] No. 914. Order of Removal to Jail to Await Trial. The President of the United States of America, to the Mar- shal of the district of , or to any of his depu- * ties, and to the Jailers of county and County, Greeting : The marshal of this district is hereby commanded to take into his custody E. M., now confined in the county jail, and transport him to , and there commit him to the cus- tody of the keeper of the jail of county, , to await the further order of the court. Service of a copy of this order of removal on the jailer of county shall be his sufficient authority for delivering the said E. M. to the marshal of this district, or to any of his deputies, and a service of a copy upon the jailer of coun- ty shall be his sufficient authority to receive the said E. M. into his custody and him safely keep until he be discharged by due course of law. [Seal.] Witness, the Hon. G. R., judge of the District Court of the United States of America, and the seal of said court at , PROCEEDINGS AFTER INDICTMENT. I181 this day of in the year of our Lord, one thousand nine hundred and and of our independence the 12 — th year. R. R., Clerk of said District Court. Per E. S., Deputy Clerk. No. 915. Motion to Quash Indictment (i). The United States of America, District of , ss. I Indictment for making a r ir I Fraudulent Claim. Now comes the defendant, L,. H., by his counsel, and moves the court to quash the first cOunt in the indictment herein for the following reasons : Mrsi. Said count does not definitely state whether the ofiense sought and intended to be charged is one for "making" a false claim upon and against the government, knowing the same to be false, or whether it is for "causing" a false claim to be made upon and against the government, or whether it is for "presenting" a false claim upon or against the govern- ment, or for "causing" to be presented a false "claim" upon or against the government. Second. The said count does not aver that the defendant at any time presented to or asked for the payment, approval, or allowance of said false claim to or by the government, or that said false claim was at any time presented to or asked of any department or ofiicer of the government by the defend- ant for payment, allowance, or approval. Third. Said count of said indictment is indefinite, uncer- tain, and insufficient in law in that it does not state or specify to what "vicious habit" of the defendant the alleged disabil- ity of the defendant was due. Il82 CRIMINAL PROCEEDINGS. Said count of said indictment is too indefinite and uncer- tain for the foregoing reasons and in the foregoing respects to apprise the defendant of the nature of the charge against him. The defendant, by his counsel, also moves the court to quash the second count of said indictment for the following reasons : First. Said count is indefinite, uncertain, and insufficient in law in that it does not state whether the alleged "false deposition" was presented by defendant or caused to be pre- sented by defendant, nor does it state whether it was for the purpose of obtaining, or for the purpose of aiding to obtain^ the approval of a false and fraudulent claim against the gov- ernment. Second. Said count is also indefinite, uncertain, and in- sufficient in law in that it does not state to what "vicious habit" of the defendant the wound in the left arm is due. Third. Said second count of said indictment is too insuffi- cient and uncertain to sufficiently apprise the defendant of the alleged false and fictitious statement, in that the alleged false and fictitious statement, to wit: "The said L. H. did not receive said wound in the arm in the said election riot," and the statement, "The said wound was due to his I^. H's own vicioiis habits " are not deposed to by the defendant in the alleged false deposition set forth in said count. Y. & Y., Attorneys for Defendant. (i) Taken from the record in U. S. vs. William Carter, District Court of the United States, Southern District of Ohio. No. 916. Entry of Plea of Not Guilty and Fixing Amount of Bail. This day came the district attorney on behalf of the United States, and said defendants being present in court, pursuant to the tenor of their recognizances heretofore taken herein PROCEEDINGS /FTER INDICTMENT. 1 1 83 and having been arraigned at the bar of this court and said in- dictment read to them for plea, says they were not guilty in manner and form as charged therein, and for their trial put themselves upon the country, and the district attorney doth alike, and on motion of the district attorney it is ordered that said F. H. enter into a recognizance in the sum of , and A. H. and C. S. into recognizances in the sum of $ each for their appearance before this court from day to day as they may be required. No. 917. Calling Bondsmen to Forfeit Bond. When the principal fails to come into court upon the time named in his recognizance the marshal or bailiff should call the name of the principal three times as follows : John Doe! John Doe! John Doe! come into court and for- feit your bond. And each bondsman should be separately called by name three times in the following words : Richard Roe! Richard' Roe! Richard Roe! come into court and produce the body of John Doe as you have promised to do or forfeit your bond. No. 917a. Scire Facias on Recognizance. The President of the United States, to the Marshal of the District of . Whereas, heretofore, to wit, on day of , 19 — , ap- peared E. M., in his own proper person, before our Circuit Court of the United States for said district [or before J. A., a United States commissioner for said district] and acknowl- edged himself indebted to the United States in the sum of dollars, and E. S. acknowledged himself indebted to the 1 184 CRIMINAL PROCEEDINGS. United States in the sum of ($ ) dollars, to.be levied of their goods and chattels, lands and tenements, to the use of the United States, yet to be void if the said E. M. should make his personal appearance before said court, at the court house in , on the first Monday of next thereafter, to an- swer a charge of the United States exhibited against E. M. and not depart the court without leave. And whereas, afterwards, to wit : On the day of ', 190 — , at the said term, 190 — , of said court, the said E. M. being called to come into court and answer said charge, came not, but made default: and the said E. S. being also called to come into court and bring with him the body of the said E. M. to answer said charge, came not, but likewise made default. Whereupon, on motion of the district attorney, it was considered by the court that for the default aforesaid, the said E. M. forfeit and pay to the United States the sum of ($ ) dollars, and that the said E. S. forfeit and pay to the United States the sum of ($ ) dollars, according to the tenor arid effect of their said recognizance, un- less they appear at the next term of said court and show suffi- cient cause to the contrary. You are, therefore, hereby commanded that you make known the contents of this writ to the said E. M. and E. S. and sum- mon them to appear before said Circuit Court of the United States, at a court to be held for the district of , at the court house in , on the first Monday of next, to show cause, if any they can, why the judgment nisi aforesaid, should be made absolute. Herein fail not. Witness the Honorable Melville W. Fuller, -Chief Justice of the Supreme Court of the United States at , in said dis- trict, the day of , 190 — . ISeal.'] B. R., Clerk of the Circuit Court of the United States for the District of . PROCEEDINGS AFTER INDICTMENT. II 8$ No. 918. Order Nolle Indictment. This day came the attorney for the United States and in- formed the court that he did not wish further to prosecute said indictment, it was thereupon ordered that as to said in- dictment said defendant go hence without day. No. 919o' Plea of Misnomer. l^Capizon.] And John Jones, who is indicted by the name of George Jones, in his own proper person now comes into court, and having heard the said indictment read, says that he was bap- tized by the name of John, to wit, at , in the county of , in the state of , and by the Christian name of John ; and has also, since his baptism, been called and known by the name of John, without this, that he, the said John Jones, now is or at any time hitherto has been called or known by the Christian name of George, as by the said indictment is alleged, and this the said John Jones is ready to verify ; wherefore he prays judgment of the said indictment, and that the same may be quashed, etc. R. Y., Attorney for Defendant. No. 920. Verification of Above Plea. State of , County of , ss. John Jones, the defendant in this prosecution, makes oath and says that the foregoing plea is true in substance and matter of fact, and that the defendant was baptized by the name of John, and has never been known or called by any other Christian name. John Jones. Subscribed and sworn to before me this day of , 1894. J. N., [Seal.] Notary Public in and for . 1 1 86 CRIMINAL PROCEEDINGS. No. 921. Replication to a Plea of Misnomer. [Caption.^ And hereupon J. H., the attorney for the United States, who prosecutes in behalf of the said United States, says that the said indictment, by reason of anything by the said John Jones in his said plea alleged, ought not to. be quashed, because the said John Jones, long before, and at the time of the preferring of said indictment, was, and still is, known as well by the name of George Jones as by the name of John Jones, to wit, at , in the county of , in the state of , and this the said J. H. prays may be inquired of by the country, etc. J. H., United States Attorney. No. 922. Special Plea. \ Caption.^ And now comes the said L. H. in his own proper per- son into court, and having heard the said indictment read, says that the said United States ought not further to pros- ecute this indictment against him, the said L. H., because he says [here set forth the grounds of the plea] ; and this the said I/. H. is ready to verify ; wherefore he prays judgment, and that he may be dismissed and discharged by this court from the said premises in the said indict- ment above specified. R. Y., Attorney for Defendant. No. 923. Replication to Special Plea. [^Caption^ And now comes J. H., attorney for the United States, in and for the district of , who prosecutes for the said PROCEEDINGS AFTER INDICTMENT. 1187 United States in this behalf, and says that the United States ought not to be precluded from prosecuting the said indict- ment against the said L,. H. by reason of anything pleaded in bar as alleged in this plea of the said defendant, I/. H., for the reason that [here set forth the grounds for the replication] ; and this the said J. H. prays maybe inquired of by the country. Wherefore he prays judgment, and that the said L. H. may be convicted of the premises in the said indictment above specified. *J. H., United States Attorney. No. 924. Plea of Former Jeopardy. (Conviction.) [Caption.^ And the said L. H., in his own proper person, now comes into court, and having heard the said indictment read, and protesting that he is not guilty of the premises charged in the said indictment, says that the said United States ought not further to prosecute the said indictment against the said L. H. in respect of the offense in the said indictment mentioned, because he says that heretofore, to wit, at the supreme judi- cial court, begun and held at , etc., {set forth the former judgment and conviction verbatim^ and then proceed as fol- lows .-] as by the record thereof, in the said court remaining, more fully appears : which said judgment and conviction . still remains in full force and effect, and not in the least re- versed or made void. And the said L,. H. further says that the said L. H. and the I/. H. so indicted and convicted are one and the same person, and not other and different per- sons. And the said L. H. further says that the \crime charged^ of which the said L. H. was so indicted and con- victed as aforesaid, and the [crime charged'\ for which he is now indicted, are one and the same [crime charged], and not 1 1 88 CRIMINAL PROCEEDINGS. other and different [crimes cliarged\ And this the said L. H. is ready to verify ; wherefore he prays judgment if the said United States ought further to prosecute the said indict- ment against the said L,. H. in respect of the said offense in the said indictment mentioned, and that the said L. H. may be dismissed and discharged from the same. R. Y., Attorney for Defendant. No. 925. Plea of Former Jeopardy. (Acquittal). [Caption^ And the said L. H., in his own proper person, now comes into court, and having heard the said indictment read, and protesting that he is not guilty of the premises charged in the said indictment, says that the United States ought not further to prosecute the said indictment against the said L,. H., because he says that heretofore, to wit, at the district court of the United States for the district of , at the term of the said court it was presented that the said L. H. then and there \here set forth the indictment^ reciting it in the past tense ; recite also the remainder of the record to the end of the judgment in the past tense in like manner^ then proceed\ as by the record thereof more fully and at large appears, which judgment still remains in full force and effect and is not in the least reversed or made void, and the said L,. H. in fact says that he, the said ly. H., and the said L. H. so indicted and acquitted as last aforesaid, are one and the same person and not other and different persons, and that the \crime charged~\ of which the said L,. H. was so indicted and acquit- ted as aforesaid, and the [crime charged'] of which he is now indicted, are one and the same [crime charged] and not other and different [crimes charged], and this the said L. H. is reaciy to verify : wherefore he prays judgment, and that by the court he may be dismissed and discharged from the said premises in the present indictment specified. R. Y., Attorney for Defendant. PROCEEDINGS AFTER INDICTMENT. II89 No. 926. Demurrer to an Indictment or Information. \_Captwn.'\ And now comes L. H. in his own proper person into court, and having heard the said indictment [or, information] read, says that the said indictment [or, information] and the mat- ters therein contained in manner and form as the same are above stated and set forth are not sufficient in law, and that he, the said L. H., is not bound by the law of the land to answer the same, and this he is ready to verify; wherefore, for want of sufficient indictment [or, information] in this behalf, the said L,. H. prays judgment, and that by the court he may be dismissed and discharged from the said premises in the said indictment [or, information] specified. R.Y., Attorney for Defendant. No. 927. Joinder to Demurrer (i). [Caption.'] And J. H., United States attorney for the district of , who prosecutes in behalf of the said United States, says that the said indictment and the matters therein con- tained in manner and form as the same are above stated and set forth are sufficient in law to compel the said L. H. to answer the same, and the said J. H., who prosecutes, as aforesaid, is ready to verify and prove the same as the court here shall direct and award. J- H., United States Attorney. (i) In most circuits tte joinder to a demurrer is made orally. 1 19° CRIMINAL PROCEEDINGS. No. 928. Demurrer to a Plea in Bar. [Captwn!\ And J. H., United States attorney for the district of , who prosecutes in behalf of the said United States, as to the said plea of the said L. H., by him pleaded herein, says that the same and the matters therein contained in manner and form as the same are above pleaded and set forth, are not sufficient in law to bar or preclude the United States from prosecuting the said indictment against the said L. H., and that the said United States are not bound by the law of the land to answer the same, and this, the said J. H., who prosecutes, as aforesaid, is ready to verify, wherefore, for want of sufficient plea in this behalf, the said J. H., for the United States, prays judgment, and that the said Iv. H. may be convicted of the premises of the said indictment specified. J. H., United States Attorney. No. 929. Joinder to a Demurrer to a Plea (i). [^CapHon.^ And now comes the said L. H., and says that his said plea by him pleaded herein and the matters therein contained in manner and form as the same are above pleaded and set forth, are sufficient in law to bar and preclude the United States from prosecuting the said indictment against him, the said L. H., and the said L. H. is ready to verify and prove the same as this court shall direct and award. R. Y., Attorney for Defendant, (i) See note to No. 512. PROCEEDINGS AFTER INDICTMENT, IIQI No. 930. Journal Entry on Plea "Nolo Contendere" (i). \Caption.\ This day came L. H., defendant in this case, in open court, and leave of court being first had and obtained, with- drew his plea of not guilty, heretofore pleaded in this case, and the said L. H. makes known to the court that he is un- willing to contest the charges set forth against him in the \second'\ count of the indictment, and that he herewith enters a plea of nolo contendere to said \second\ count of the indictment, and throws himself on the mercy of the court, and thereupon J. H., attorney for the United States for the district of , dismisses the [first, third, etc.^ as may be\ counts of said indictment, and thereupon the court, pro- ceeding to sentence the said L. H., doth adjudge him to pay a fine of dollars. (i) See Bishop on Criminal Prac, Sec. 469. No. 931. Petition for W^rit of Habeas Corpus ad Testificandum. The Circuit Court of the United States, District of . The United States \ p^^.^.^^ ^^^ ^^.^ ^^ ^^^^^ ^^^^^ -J. Vt j ad Testificandum. To the Honorable, the Circuit Court of the United States for the District of : The petition of J. H., United States attorney for the district of , respectfully shows to' this honorable court that one C. B. is confined in the county jail at , , and is in the custody of A. M., the sheriff of the said county of , at said place, under authority of the United States and in accordance with the laws thereof, hav- 1 192 CRIMINAL PROCEEDINGS. ing been convicted of an offense against the laws of the United States, and sentenced to imprisonment in said jail for —. — years, from , 1894, by virtue of which the said sheriff now holds the. said C. B. Your petitioner avers that the said C. B. is a material wit- ness in the above-entitled cause on behalf of the plaintiffs, and that the said cause is set for trial the day of , 1894. Wherefore your petitioner prays that this honorable court do forthwith order the writ of habeas corpus ad testificandum to issue from this court to the said A. M., sheriff, as afore- said, requiring him to produce the body of said C. B. be- fore this court on said day of , 1894, to testify on behalf of the plaintiff in the above-entitled cause, and as in duty bound your petitioner will ever pray, etc. J. H., United States Attorney. No. 932. Writ of Habeas Corpus ad Testificandum. The United States of America, District of , ss. To the Sheriff of County, , Greeting: We command you, that you have the body of C. B., de- tained in the jail of said county under your custody, as it is said, under safe and secure conduct, before the judges of our district \or^ circuit] court within and for the district aforesaid, on the day of , 1894, by ten o'clock in the forenoon of the same day, there to testify the truth ac- cording to his knowledge, in a certain cause now pending in said court, and then and there to be tried, between the United States, plaintiffs, and L. H., defendant, on the part of the United States, and immediately after the said C. B. shall then and there having given his testimony before our said judges, that you return him^ the said C. B., to the said PROCEEDINGS AFTER INDICTMENT. 1 1 93 jail of county, under safe and secure conduct, and have you then and there this writ. [Ada! teste according to the court issuing the writ. See Nos. 30 and 31. No. 933. Verdict — Guilty. [Caption.'\ We, the jury, find the defendant guilty as charged in the indictment. S. W., Foreman, No. 934. Verdict by Jury — Guilty. \Caption.\ We, the jury herein, do find the defendant guilty in man- ner and form as charged in the first and third counts of said indictment, and not guilty as charged in the remaining counts thereof. S. W., Foreman. •No. 935. Verdict— Not Guilty. [^Caption.^ We, the jury, find the defendant not guilty. S. W., Foreman. No. 936. Motion in Arrest of Judgment. The Circuit Court of the United States, for the District of . The United States ^ vs. y Motion in Arrest of Juagment. L. H. j And now comes the defendant, and moves the court to 1 194 CRIMINAL PROCEEDINGS. arrest judgment on each and every count in the indictment herein upon which the defendant was convicted, because the facts therein stated do not constitute an offense against the laws and statutes of the United States. Y. & Y., Attorneys for Defendant. No. 937. Entry of Distribution upon Payment of Fine. \Caption!\ Upon motion of the United States attorney, and it appear- ing to the court that the sum of $ has been made by the marshal upon a fieri facias issued in this court, and the same paid into the registry of the court, and the court proceeding to distribute the same, orders and directs that the said sum of $ be paid to the assistant treasurer of the United States at , for the use of the department of the United States. No. 938. Final Commitment. The District \or, Circuit] Court of the United States, District of . The United States | vs. > Indictment No. . L. H. j The defendant, L. H., having been tried and found guilty, as charged in the said indictment, for violation of Section of the Revised Statutes of the United States. Thereupon the court pronounced the following sentence, to wit: that the said L. H. be imprisoned in the peniten- tiary of the state of for the term of years [and that he pay a fine of $ , and the costs of this prosecution to be taxed, as the case may be\ \ therefore, this is to com- mand the marshal of said district to take the body of the PROCEEDINGS AFTER INDICTMENT. 1 1 95 ■said L. H. and commit the same to the penitentiary of the state of pursuant to the above sentence. [Add teste, according to the court issuing the commitment. See Nos. 55 and 56.] No. 939. Judgment and Sentence of Death (i). [^Caption.] On motion of Wm. H. H. Clayton, Esq., attorney for the western district of Arkansas, the said defendant, John Pointer, was brought to the bar of this court in custory of the marshal of said district, and it being demanded of him what he had to say or can say why the sentence of the law upon the verdict of guilty of murder, heretofore returned against him by the jury in this cause on the 26th day of March, 1892, shall not now be pronounced against him, he says he has nothing fur- ther or other to say than he has heretofore said. Whereupon the premises being seen, and by the court well and sufficiently understood, it is considered by the that the said marshal of the district aforesaid cause the said John Pointer to be taken hence and him, the said John Pointer, safely and securely keep from the date hereof until Tuesday, the 28th day of June, A. D. 1892, and on that day and between the hours of nine o'clock in the forenoon and five o'clock in the afternoon of said day, the said marshal cause the said John Pointer to be taken to some convenient place within this district, to be appointed by said marshal, and then and there, between the said hours of nine o'clock in the forenoon and five o'clock in the afternoon, on Tuesday, the said 28th day of June, in the year of our Lord, one thousand eight hundred and ninety-two, cause the said John Pointer to be hanged by the neck until he is dead. And it is further considered by the court that the United States of America do have and recover all their costs in and about this prosecution laid out and expended, and that they bave execution therefor. ligS CRIMINAL PROCEEDINGS. And the clerk of this court is hereby required to furnish the marshal of this district with a duly certified copy of this judg- ment, sentence, and order, which shall be returned by said marshal with a full and true account of the execution of the same. (i) Taken from Pointer vs. United States, 151 U. S. 417. HABEAS CORPUS. • 1 1 97 HABEAS CORPUS. No. 940. Petition for Writ of Habeas Corpus (i). The District [or, Circuit] Court of the United States, District of . In the matter of the application of I*. H. for a writ of habeas corptis. To the Honorable Circuit Court of the United States in and for the District of : Your petitioner, L. H., respectfully represents and shows to this honorable court that he is a citizen of the United States and a resident of Oklahoma Territory ; that he is un- justly and unlawfully detained and imprisoned in the peni- tentiary at , , by C. J., warden of said penitentiary, by virtue of a warrant of commitment, a copy of which is hereto attached, marked Exhibit "A." Your petitioner further shows that at the term, i8 — , of the district court of the first judicial district within and for county, Oklahoma Territory, and for the Indian country, attached thereto for judicial purposes, sitting with the powers of a district court of the United States of Amer- ica, and the grand jurors of the United States of America, within and for said country, and that part of the Indian country attached to said country for judicial purposes, hav- ing been empaneled, sworn, and charged to inquire of offenses against the laws of the United States, committed within that part of Oklahoma Territory so attached to county for judicial purposes, as aforesaid, found an indictment against your petitioner for the larceny of horses in that part of the territory attached for judicial purposes to county, as 1 198 CRIMINAL PROCEEDINGS. aforesaid, which said part of said territory was then and there Indian country, and a place and district of country alleged to be then and there under the sole and exclusive jurisdic- tion of the United States of America, a copy of which in- dictment is hereto attached, marked Exhibit "B." Your petitioner further shows that he was tried upon said indictment by said court sitting with the powers of a district court of the United States of America, as aforesaid, con- victed and sentenced by said court "to be confined for a period of five years in the penitentiary at , , at hard abor; and said term of service to commence from the day of , 1894, at ten o'clock, and that he pay the costs of this action." Your petitioner further shows that his term of imprison- ment did, in fact, begin on the day of , 1894, and that he has ever since been and still is confined in said penitentiary under said sentence. Your petitioner further shows that his detention and im- prisonment, as aforesaid, is illegal, in this, to wit: First. That the sentence under which your petitioner is held is excessive, illegal, and void. Second. That the commitment under which your peti- tioner is held is illegal and void. Third. That the court was without jurisdiction to im- pose the particular sentence under which your petitioner is held. Fourth. That the court was without jurisdiction or power to sentence your petitioner to imprisonment in a peniten- tiary for the ofiense of which he was convicted. Fifth. That your petitioner's imprisonment and deten- tion under said sentence is contrary to the laws of the United States. Sixth. That your petitioner has already served a longer term of imprisonment than could be imposed by law. Seventh. That there is no judgment of the court upon which to pass sentence, or to base the commitment herein. HABEAS CORPUS. 1 199 Eighth. There is no record of the indictment and trial herein, as required by law. Ninth. That the commitmen^^/does not set out the sen- tence as passed by the court, a^equired by law. Tenth. That the court which passed the above sentence was without the jurisdiction of the offense charged, and that the sole and exclusive jurisdiction thereof was in the district court of Oklahoma Territory sitting as a territorial court, and not in the United States courts. Wherefore, to be relieved of said unlawful detention and imprisonment, your petitioner prays that a writ of habeas corpus, to be directed to the said C. J., warden of the penitentiary, may issue in this behalf, so that your petitioner may be forthwith brought before this court to do, submit to, and receive what the law may direct. L. H. (i) The warrantor commitment, marked Exhibit "A,'' and the in- dictment, marked Exhibit " B," should be attached to the petition, and the petition should be verified by an affidavit of the petitioner. For form see No. 525. See also Desty's Fed. Proc, Sec. 359 et seq:, R. S., Sec. 751 et seq.; Foster's Fed. Prac, Sees. 366 and 367, and notes. No. 941. Affidavit of Petitioner. State of , County of , ss. L. H., being duly sworn, deposes and says, that he is the petitioner named in the foregoing petition subscribed by him; that he has read the same, and knows the contents thereof, and the said statements made are true, as he verily believes. Iv. H. Sworn to by the said L. H. before me, and by me sub- scribed, on this day of , 1884. S. S., Notary Public, [&«/.] County of . S. S. 1200 CRIMINAL PROCEEDINGS. No. 942. 'Writ of Habeas Corpus. The United States of America, District of , ss. To W. C, Jailer of County, : We command you that the body of L. H., in your custody detained, as it is said, together with the day and cause of his caption and detention, you safely have before G. W., judge of our district [or, circuit] court of the United States, within and for the district aforesaid, to do and receive all and sin- gular those things which the said G. W., judge of our said district [or, circuit] court, shall then and there consider of him in this behalf; and have you then and there this writ. [Add teste according to the court issuing the writ. See Nos. 55 and 56"] No. 943. Entry— The Finding of the Court. [Caption as in No. 940. J On this day of , 1894, this cause came on to be heard upon the application of a writ of habeas corpus directed to C. J., warden of the state penitentiary, and after argument on behalf of the petitioner, L,. H., by his counsel R. X., Esquire, and by J. H. on behalf of the United States and the warden of the state penitentiary, and the court being fully advised in the premises, find : [here set forth the opinion of the judge, if a written opinion is handed down, or the finding by the court, as may be\. G. W., R. X., United States District Judge. Counsel for Petitioner. J. H., United States Attorney. HABEAS CORPUS. 1 20 1 No. 944. Entry Ordering Discharge of Prisoner. \Caption same as in No. 940.] On this day of , 1894, came the parties by their counsel, and this cause coming on to be heard upon the copies of the indictment, journal entry of the supreme court of Oklahoma Territory, attaching that part of the Indian coun- try in said territory to county for judicial purposes, and of the commitment under which the prisoner is detained by the warden of the state penitentiary, and the issue of the writ and production in court of the body of said ly. H. being waived both by counsel for petitioner and for the United States and, after argument of counsel, and the court being fully advised in the premises, the court finds that said petitioner is unlawfully restrained of his liberty, and it is therefore considered and ordered by the court that said L. H. be discharged from the custody of the said warden, as aforesaid, and that he go hence without day. It is further ordered, that the United States marshal serve a copy of this order upon the warden of the state penitentiary. To which finding and judgment of the court, the United States district attorney excepts, and prays that the excep- tion may be noted. I202 CRIMINAL PROCEEDINGS. PROCEEDINGS AGAINST JAILER. (PRISONER ESCAPED.) No. 945. Motion for Rule against Jailer to show Cause, etc. Now comes J. H., attorney for the' United States, and in- forms the court that the defendant, I/. H., on the day of , 1894, in pursuance of a sentence and judgment of said court was, on a temporary mittimus, delivered to the marshal and committed to the jail of county, in the state of , in charge of W. C, to await further order of court; that on the day of , 1894, a final commitment was issued to the marshal directing him to execute the sentence of the court and deliver the body of ly. H. to the warden of the penitentiary of the state of , to be imprisoned for the term of years, and to pay the penalty of , and on the day of , 1894, at 7 o'clock p. m., the marshal demanded such prisoner of W. C, keeper of the county jail, and was informed that said prisoner had escaped. Wherefore he prays for a rule to issue to the said W. C, jailer of county, to show cause why he should not be attached for contempt for failure to comply with the order of the court. J. H., United States Attorney, District of . No. 946. Granting Motion for Rule, etc. [Caption^ This cause coming on to be heard on the motion for a rule to issue to the keeper of the county jail by the attorney PROCEEDINGS AGAINST JAILER. 1203 for the United States, and the same being submitted, and the court being fully advised, grants the same, and it is ordered that a rule to show cause be issued to W. C, the jailer of county, returnable for hearing on the day of , 1894. No. 947. Rule for Jailer to show Cause, etc. \^Caption.'\ The President of the United States of America to W. C, jailer of county, state of : You are hereby cited and admonished and ordered to ap- pear before our district \or circuit] court of the United States within and for the district of , on Saturday, the day of , 1894, at ten o'clock a. m., to show cause, if any you know or have, why you should not be attached for con- tempt of court on failure to comply with the order of court to safely keep the said I/. H. a prisoner. It is ordered that the marshal of this district make return of this rule on or before the appearance-day above noted. [Add teste according to court issuing the rule. See Nos. 55 and 56.J No. 948. Answer of Jailer to the Rule to show Cause. The United States, Plaintiffs, \ vs. > Answer. W. C, Defendant. j Now comes the said W. C, and for answer to the rule is- sued herein to show cause why he should not be attached for contempt of this honorable court says that h. S. is the sheriff of county, , and that by Section 7368 of the Revised Statutes of it is provided : " The sheriff, or person acting as such, shall have charge of the jail of the county, and of all persons confined I204 CRIMINAL PROCEEDINGS. therein, and the same shall safely keep and by himself or deputy shall at all times attend to the jail and govern and regulate the same according to the rules and regulations pre- scribed by the court of common pleas." He further says that the said sheriflF of county duly appointed him, the said W. C, and one C. W., deputies of said county. That he was assigned as such deputy to be the keeper of the jail of said county, and that the said C. W. was duly ap- pointed by said sheriff as turnkey of the jail of said county. That in the absence of the jailer, and while not on duty as such, the said C. W. acts as jailer, and performs the duties as such, and all of this was true at the time of the alleged escape ©■f said L,. H. He further says that the said L. H. -was not placed in his charge except as he was by law placed therein when he was committed to said jail. He further says that said L. H. did escape from said jail, but with- out the knowledge of said respondent and while he, said W. C., was not on duty as such jailer, while he was lawfully ofi" •duty, and while he was absent from said county jail on busi- ness, and during regular hours of absence as known and authorized by the sheriff of county. W. C. further says that said escape was without any fault on his part, and that he has not been guilty, or intended to be so, of contempt of this honorable court, nor has he acted in viola- tion of his duty in any particular. "Wherefore, said W. C. asks to be dismissed from the re- quirements of said rule to show cause why he should not be attached for contempt. Y. & Y., Attorneys for Respondent. State of , County of . W. C, being duly sworn, says that the facts stated in the foregoing answer are true as he believes. W. C. Sworn to before me and assigned in my presence this day of , 1894. J. N., [6'efl/.} Notary Public in and for County. PROCEEDINGS AGAINST JAILER. 1205 No. 949. Entry Discharging Jailer. \^Captwn.\ On reading and filing the answer of the defendant, W. C, to the rule to show cause why ha should not be attached for contempt, filed against him in this cause, and on motion of counsel for said defendant W. C, it is ordered hereby that the rule to show cause why said W. C. should not be attached for contempt in this cause be and the same is hereby dis- charged at the costs of the United States. KF 170 L89 1903 Author Loveland, Franhlin Olds Vol. Title Forms of federal practice Copy vol. 1 Date Borrower's Name '